Yesterday, the United States Supreme Court unanimously reversed a federal controlled substance analogue conviction, because the trial judge watered down the necessary jury instruction for obtaining such a conviction, in this instance involving so-called ‘bath salts’.
Far from a liberal for criminal defendants nor foranyone else, Justice Clarence Thomas — who rarely questions nor comments at oral argument — wrote an eight-justice opinion (with a concurrence by Chief Justice Roberts that favors even more teeth for criminal defendants than Justice Thomas’s opinion) holding thata federal controlled substance analogue conviction requires knowing its features or that it is a controlled substance. McFadden v. United States, ___ U.S. ___ (June 18, 2015).
I have had clients prosecuted for possessing and selling alleged controlled substance analogues (which defense I address here). No matter how harmful such natural drugs as marijuana, cocaine and heroin/opium/morphine may be, creating chemical-based analogues to them can cause health risks that are so much higher as to make the following among the only possibly logical reasons for using controlled substance analogues rather than the drugs the analogues purportedly mimic: hoping that such analogues bring a chance of no conviction or a lesser punishment; hoping the analogues will not show up as drugs in an employment drug test; easier access to analogues than the real substance; and any substantially lower prices on analogues compared to the real drugs.
Of course, if drugs were substantially decriminalized, the market for controlled substance analogues would plummet.