WAR IS PEACE
On January 4, 1994, law enforcement agents in California arrested Bob and Connie Shepard after finding inside their home a pair of Bufo alvarius toads, several San Pedro cacti (Trichocereus Pachanoi), and a single mushroom suspected to naturally contain psilocybin. The officers also found several vials believed to contain dried venom extracted from the parotoid glands of the toads. Criminal charges against Mrs. Shepard were subsequently dropped, but Mr. Shepard faced felony charges of illegal possession of controlled substances under California's Controlled Substances Act.
While the case against Mr. Shepard was recently resolved by a diversion referral, the government's general theory, that California's anti-drug laws are violated by a person possessing these natural plants, fungi and toads, constructs a picture of our world stranger than even Salvador Dali could have imagined. The case raises numerous issues concerning the ever expanding nature of the war on drugs.
It is true that under California law bufotenine, mescaline, and psilocybin, are controlled substances and their possession is illegal. The problem with the prosecution discussed above, is that the officers failed to find any of these substances (except possibly bufotenine). Instead, the officers merely found natural objects that may themselves naturally produce controlled substances internally. While the vials containing the suspected toad extract come the closest to a controlled substance in its "pure" drug form, the biochemical composition of Bufo alvarius venom is open to some debate. The venom is believed to contain only trace amounts of bufotenine. In fact, the actual amount of bufotenine in the venom is possibly, if not likely, so scant that a single extraction from the toad's parotoid glands might not contain an amount of bufotenine "useable" as a controlled substance, as required for a possession conviction under California law.
Most scientists agree that the primary active ingredient in B. alvarius venom is 5-methoxy-DMT, not bufotenine. The substance 5-MeO-DMT is not a scheduled substance under Federal or California law. (DMT is, of course, a controlled substance in every jurisdiction, but its 5-methoxy derivative is entirely unscheduled.) This "technicality" was, however, no obstacle to the prosecution which, upon learning that the toad venom did not contain a controlled substance, added a further fold of surrealism to the case by amending the felony complaint to charge a violation of the hopelessly vague and scientifically specious California Controlled Substances Analog Act (Health and Safety Code section 11401).
But, does one commit a crime by merely possessing plants or animals that may themselves naturally contain controlled substances (or compounds "substantially similar" to a controlled substance)? A reading of the California and Federal drug laws indicates that when the government has intended to outlaw the possession of specific plants, it has expressly done so. For example, the government has not only outlawed possession of the substances: cocaine, THC, opium, and ibogaine, but also possession of their natural plant sources: Coca leaves, all plants of the genus Cannabis, Opium poppies (Papaver somniferum), and Tabernanthe iboga. Most on point is the government's handling of the substance mescaline. The government (both Federal and California) not only expressly schedules mescaline, but it separately and by name also schedules its well known plant source peyote (Lophophora williamsii.)
Unlike peyote (or the other plants noted above) San Pedro cacti is not scheduled under California or Federal law. Presumably, if the government had intended to make San Pedro or any other mescaline producing cacti illegal, it would have expressly done so rather than only naming peyote. If the technique of enumerating controlled substances is to mean anything, it must fundamentally mean that those substances that are not enumerated are not controlled. (Expressio unius est exclusio alterius.) Consequently, one is led to the reasonable conclusion that San Pedro cacti are not controlled substances, and that mere possession of San Pedro is not a crime. This conclusion seems to be confirmed by the fact that it is sold commercially in such common outlets as the K-mart garden center, and yet no prosecution has resulted.
A similar point can be made with respect to the substance psilocybin, possession of which is outlawed under Federal and California law. As with San Pedro, however, neither the California nor the Federal schedules explicitly outlaw possession of the natural vegetable plant source (or in this case, fungi) which may embody the substance. The Federal law does outlaw "manufacturing" controlled substances such as psilocybin or mescaline, by "extracting" them "from substances of natural origin." However, there does not appear to be any evidence of "manufacturing" psilocybin or mescaline in this case. It appears that the closest the State of California comes to outlawing a mushroom that naturally contains psilocybin is in the State's law against the "cultivation" of mycelium that produces psilocybin. (See Health & Safety Code sections 11390 through 11392.) Those sections, however, appear by their own language to be limited to cultivation and do not address the mere possession of wild mushrooms found naturally growing and which may contain psilocybin.
Finally, it is axiomatic that all laws must be reasonably construed. It would, therefore, be patently absurd for the government to try and make its case by arguing that the cacti, toads and mushroom seized in this case are illegal "containers" or "mixtures" containing the scheduled drugs. Such an argument should fail because it stretches to ludicrous proportions the definition of "container" or "mixture." The average person would not naturally think of a plant or mushroom as a "container" or "mixture." In fact, such unnatural reductionist definitions would make possession of our own brains illegal for the simple reason that they endogenously contain the Schedule I substance DMT.
IGNORANCE IS STRENGTH
The absurdity of California's attempt to prosecute a person for possessing cacti, toads and a mushroom is underscored when one considers what the government would have to prove in order to sustain a conviction for such a "crime." It is a fundamental characteristic of our criminal jurisprudence to define almost every crime in terms of a particular act and a particular mental state. In order to be guilty of a particular crime you must commit the physical act simultaneously with having the requisite mental state or intent. (For example, the crime of forgery consists of the act of making or altering of a false writing, combined with the mental state of intending to defraud.)
This act/intent structure is carried into the laws criminalizing the possession of controlled substances. To convict a person of illegal possession the government must not only prove that the person physically or constructively possessed the scheduled substance (the act component of the crime), but it must also prove, by direct or circumstantial evidence, that the person had knowledge of the identity of the substance (the mental state component of the crime). When the possession laws are applied to somewhat arcane biota, as California is attempting to do in this case, an absurdity arises which to any rational person unequivocally signals that the law is being stretched far beyond its limits. The following example illustrates this point.
Imagine two people, Citizen A and Individual B, living on identical small acreages on which numerous plants and fungi naturally abound. Citizen A spends his time gazing at images flickering across the television screen, uninterested in the natural environment in the "big room." (The one with the really big blue ceiling and the big bright light.) Individual B, in contrast, takes an active and healthy interest in his natural surroundings and undertakes the enjoyable endeavor of caring for the plants and fungi on his property and learning a bit about them. As Individual B identifies the flora on his property one by one, he suddenly gains the "evil" and indeed "criminal" knowledge that San Pedro is growing on his property and that this cactus naturally contains the controlled substance mescaline. In other words, by the simple act of educating himself, Individual B would spontaneously become a Thought Criminal. By the simple, peaceful, and innocent act of identifying this plant, he gained knowledge which would itself be illegal when combined with the reality of the San Pedro cactus growing on his property. He failed to practice Crimestop.
FREEDOM IS SLAVERY
The government's prosecution in this case paints a surreal picture of reality, stranger than any vision elicited by hallucinogens. In this picture, individuals are not sovereign over their own minds, nature herself is decreed illegal, knowledge is criminal and prison is the possible parlor of any person with vision and courage enough to proclaim jurisdiction over his or her own mind and body.
It is offensive to the concept of human liberty that the government has claimed dominion over our own brains and makes criminals out of people who claim the right to control their brains by occasionally choosing to operate them with the assistance of entheogens. It is preposterous and repugnant for the government to now expand its claim of dominion over all plants and animals that themselves naturally embody controlled substances. Even Orwell in his most hair-raising dystopian fantasies could not have foreseen such a claim by the State.
"The two aims of the Party are to conquer the whole surface of the earth and to extinguish once and for all the possibility of independent thought."
Or did he?
- - - -
"your avatar is dirty."