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Legal learning: Head shop case raises questions

Everybody seemed happy when Jim Carlson, the head shop guy in Duluth, was convicted. Everybody, that is, except people concerned about the rule of law and constitutional rights. They had some doubts.

Carlson is the owner of The Last Place on Earth in downtown Duluth. He sold such things as "herbal incense" and "bath salts" and "spice", synthetic drugs that are (he thought) legal alternatives to marijuana and cocaine. His store was extremely popular - people lined up outside to buy his products.

In early October the federal jury in Duluth convicted him of 51 felonies. The 12 jurors also convicted Carlson's girlfriend, Lava Haugen, and his son, Joseph Gellerman.

The Mayor of Duluth, Don Ness, was quick to respond. "There is a great sense of relief in the city of Duluth that we won't have this massive problem in our downtown, going forward", he said. An owner of the printing company next to the head shop offered his opinion: "It was like a crack neighborhood."

So who could object to the jury's verdict? The law is clear - you can't sell illegal drugs. Both federal and state laws carefully define controlled substances, putting them in five different schedules according to harmfulness. [Note that heroin, LSD, and marijuana are all on Schedule I, which is obviously ridiculous.] The lists are constantly getting longer, as new chemical compounds are created. In fact, a former employee testified that Carlson would stop selling any substance that was added to the list of illegal drugs.

According to the testimony, the stuff Carlson was selling isn't on those lists. Some of them have very similar components, but they aren't identical. The prosecution argued that they were "closely related substances," so their sale violated the federal "analogue" law. That law bans substances with similar chemical structures and effects to controlled substances already on the government's official list. The U.S. Attorney said that in some instances in Carlson's case, there was only a single molecule change from substances banned by the Federal Drug Administration, so their sale is also illegal. The jury bought that argument.

Carlson's attorney, Randy Tigue, however, argued that "this is a prosecution by ambush of someone who obeys the law. . . . We do not have secret laws" in this country.

And Joseph Daly, emeritus professor at Hamline Law School in St. Paul, said the synthetic drug law is vague and could lead to a successful appeal. "I think the defense may have a good argument," he told the Minneapolis Star Tribune.

Even beyond the argument that the law is vague and ambiguous, this case raises the question of why we criminalize potentially harmful drugs in the first place. Even if The Last Place on Earth is closed, people who want go get high can always buy drugs (including alcohol) that have that effect. DFL Representative Dan Schoen has been battling so-called "synthetic marijuana," and calls the new designer drugs "a special demon". But he admits that the criminal law won't stop people from buying drugs online. "I'm not going to pretend that we're going to wipe out drugs," he said, "but we're going to make it harder." Given the amount of money we spend on the "War on Drugs", one must ask if this makes any sense.