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Treading carefully in unpredictable times: Recent legal incidents in the USA

Natalia Rebollo image8 m read - 25.01.2019

The team at the Ayahuasca Defense Fund (ADF) has learned of an unprecedented increase in law enforcement actions and related events involving ayahuasca in the United States over the course of the last year. As part of our commitment to providing accessible educational information, this post is intended to ensure that the US-based ayahuasca community is aware of the recent increase in ayahuasca-related law enforcement actions so individuals and communities can assess their own vulnerabilities and minimize legal risks.

In this article, we provide a brief overview of the legal status of ayahuasca in the United States, describe the law enforcement actions that have come to our attention, and analyzes how these incidents may impact legal vulnerability and how to assess risk. Finally, we present suggestions for how communities can move forward and reduce their risk of contact with law enforcement.

The content of this post is not legal advice, nor does it condone or promote illegal activities; for questions specific to your situation, consult with a criminal defense attorney in your state.

Summary:

  1. Ayahuasca is illegal to import, consume, possess, sell, and distribute in the United States because of the DMT it naturally contains. Only some churches have been granted exemptions to the Controlled Substances Act to legally use ayahuasca for religious sacramental use – the União do Vegetal (UDV) and the Santo Daime (with three churches in Oregon, as well as locations in Washington, California, and Massachusetts). (More detailed information about the legal status of ayahuasca in US can be found here.)
  2. At least four incidents have occurred so far throughout 2018 which have come to our attention: two of them stem from traveling with ayahuasca and the other two were related to receiving ayahuasca shipments from Peru.
  3. As a result of the United States Supreme Court’s Decision in the UDV case, the DEA (under its Congressionally-granted authority) has established a procedure for the licensed importation and distribution of ayahuasca under certain limited circumstances. The unlicensed importation or distribution of ayahuasca will be treated as a felony under both state and federal law – with serious criminal implications for anyone who is arrested and prosecuted under existing laws.
  4. People engaging with ayahuasca in the United States ought to have a plan in place in case they have an encounter with law enforcement, including a relationship with a lawyer in their state who understands the relevant issues.

 

LEGAL OVERVIEW

Ayahuasca is illegal to import, consume, possess, sell, and distribute in the United States because it contains DMT. The DMT in ayahuasca is a Schedule I controlled substance regulated by the Controlled Substances Act (CSA). The statutory maximum punishment for possession or import of DMT or a substance found to contain DMT is 20 years imprisonment.

The Drug Enforcement Agency (DEA) states: “According to the National Forensic Laboratory Information System (“NFLIS”), there were 586 DMT reports from Federal, state and local forensic laboratories in 2015. From January to June 2016, there were 243 DMT reports. According to the (“NFLIS”), illicit use of DMT has been encountered in all states.”

Only two churches have been granted exemptions to the Controlled Substances Act (CSA) to legally use ayahuasca for sacramental use: the União do Vegetal (UDV) through a Supreme Court ruling in 2006, some churches of the Santo Daime won a District Court in 2009, and others applied for and received exemptions from the DEA. Over the last two years, at least two churches (Ayahuasca Healings and SoulQuest) have applied for exemptions to the CSA through an administrative process overseen by the DEA, but neither has received permission yet.

In other words, the legal protection granted to the UDV and the Santo Daime does not extend to ayahuasca use by other individuals or communities, including ones connected with indigenous or other traditional uses of ayahuasca, even if they do have legal church status under the Internal Revenue Service (IRS). Ayahuasca mailed or shipped into the United States is sometimes seized by Customs and Border Protection (CBP), and the purported receivers of ayahuasca are then directly contacted by CBP and asked to forfeit the medicine. Individuals caught with ayahuasca (both when entering the country and when receiving it in the mail) are being arrested and charged as DMT drug traffickers. If you work with ayahuasca in any way, please be on notice of these incidents and please be aware of the risks involved.

You can find more detailed information  about the legal status of ayahuasca in the United States under the US section of the ADF’s National Legal Status page.

 

Recent incidents in the USA

The ADF is aware of at least four occurrences so far this year. This wave of new incidents and arrests has alarmed practitioners and communities alike.

Two incidents stem from traveling with ayahuasca. One occurred at the airport when a person was flying into Florida. The defendant was apprehended when traveling to Miami from Colombia with four liters of ayahuasca; after six months of Court hearings and wearing a monitoring bracelet, he was offered the option to plead guilty with the possibility of the felony being reduced to a minor offence. Almost one year later, this case is still ongoing and the defendant – who initially denied he was carrying ayahuasca – subsequently declared that he used it as a medicine and for ceremonial purposes.

The second incident occurred while someone was crossing the US-Canada border by car. The CBP found, based on New York state law, that crossing the border carrying ayahuasca constituted a felony. It is important to mention that when the incident occurred, the authorities did not have any knowledge about ayahuasca, and therefore categorized it as a “Class X” substance, i.e. DMT. The defendant was detained and remained out of communication for three days, after which they were charged with “criminal possession of a controlled substance” (DMT). Although the felony was later reduced to a misdemeanor, the Canadian defendant had to pay a $1,200 fine and was banned from entering the United States.

Two additional incidents were reported, both regarding the receipt of ayahuasca shipments mailed from Peru. In one case, the CBP considered it the “unlawful importation of a controlled substance and smuggling goods into the US.” However, the property was seized by the CBP before anyone received it. Because the package was then abandoned with no “claim of interest,” the incident concluded with the forfeiture of proceedings.

In the other incident, a person received a package containing ayahuasca, which was then used as grounds by law enforcement to raid and search the person´s home.  The material was seized and allegedly submitted for analysis by a Forensic Laboratory, after which a formal indictment was delivered by a grand jury in the State of Illinois. The individual has been charged with “possession of a controlled substance with intent to deliver.” The defendant is being charged with possession of DMT (a “Class X” substance) and has been under house arrest and not able to work since that time.

 

What sense can we make of these new incidents?

When all the above incidents are reviewed based on their individual facts and details, one apparent commonality is that law enforcement does not generally differentiate between ayahuasca and DMT. In fact, the weight of liquid ayahuasca is often used to calculate the entire amount of DMT contained in ayahuasca − an inaccuracy we have noted in other cases around the globe.

At this time, ADF does not have enough information to make any claims explaining the increase in law enforcement or make predictions about future incidents. It is possible that US law enforcement entities have been put on notice about the increased interest in ayahuasca in the United States, and it is also possible that this increase is completely random. Regardless, individuals who are importing ayahuasca, facilitating ayahuasca ceremonies, or otherwise engaging with ayahuasca should be aware that enforcement actions are increasing in frequency and that it is incredibly important to engage in legal harm reduction practices as described below.

Importantly, people engaged in ayahuasca practices should also be aware that their actions – and any legal issues that arise from contact with law enforcement – could significantly impact the future of access to ayahuasca in the United States.

 

What to do

Last year, ADF consultant Robert Heffernan wrote 7 Best Practices for Ayahuasca Legal Harm Reduction, which was published on Chacruna.net. Please familiarize yourself with the recommended practices, as they provide valuable insights into legal harm reduction.

In addition, people who choose to take the risk of bringing ayahuasca into or facilitating ayahuasca ceremonies within the United States ought to have a plan in place in case they have an encounter with law enforcement. They should have an established relationship with a lawyer in their state who understands the following relevant issues: the difference between DMT and ayahuasca; the status of exemptions to the CSA; and how the Religious Freedom Act Restoration (RFRA) has been used to defend the use of ayahuasca in the past.

Ismail Ali is Policy & Advocacy Counsel for the Multidisciplinary Association for Psychedelic Studies and a member of the ADF Steering Committee.

Natalia Rebollo is the coordinator of the Ayahuasca Defense Fund.

ADDITIONAL RESOURCES

 

Categories: Ayahuasca , ADF
Tags: USA

IMPORTANT: Please read our Disclaimer if you are thinking to use psychedelics after this read.