Indiana’s ‘Spice’ law that a pair of divided Court of Appeals panels ruled unconstitutional last month should be reinstated, Attorney General Greg Zoeller argues in briefs asking the Indiana Supreme Court to review the decisions.
Separate appellate panels on Jan. 27 ruled portions of the state’s synthetic drug statute void for vagueness and dismissed charges against defendants in those cases. Christopher Tiplick and Aadil Ashfaque each had been charged with possession and dealing XLR11, which the Indiana Pharmacy Board had declared a “synthetic substance,” but not a “synthetic drug.”
Judge Melissa May wrote for the majority in both opinions that the statutory scheme that allows classification of substances through pharmacy board rulemaking posed challenges for an ordinary person to know which substances were legal or illegal. In Tiplick, she wrote, “To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a ‘Where’s Waldo’ expedition is ludicrous.”
The statute includes a list of more than 80 banned synthetics, and Zoeller said the law was written in an attempt to keep up with new formulations. The AG’s office asked the Supreme Court to grant transfer in both cases Friday.
“The statute is designed to be flexible and allow the Board of Pharmacy to update the banned synthetics list because the man-made nature of these drugs allows manufacturers to come up with endless new versions of these deadly products,” Zoeller said in a statement. “The result is continued access to these drugs, which creates in young people the tragic misconception that synthetics sold at the retail level are safer than the traditional drugs they are designed to mimic. We cannot afford to take a step backward and allow more youth to get their hands on these poisons.”
The use of synthetic drugs has increased dramatically in recent years, with the first reports of synthetic drugs appearing in the U.S. around 2009. Poison control centers across the country received 2,668 calls about exposures to synthetic drugs in 2013 and 3,677 exposures in 2014. According to a 2014 Indiana University study, nearly 14 percent of high school seniors in Indiana say they have tried synthetic marijuana. Synthetic drugs come in many different forms and when ingested, the substances cause serious and harmful effects that can be deadly.
State Sen. Jim Merritt (R-Indianapolis) is the author of Indiana’s original synthetic drug ban, which first became law in 2012. In response to the recent Court of Appeals’ rulings, he has authored new legislation in the current session in an attempt to make the law clearer should the rulings remain in place. Senate Bill 93 would explicitly state where in the Indiana Administrative Code and on the Internet the public can find the Pharmacy Board’s orders banning additional synthetic drugs. The bill unanimously passed the state Senate.
“Thankfully, Indiana has some of the strongest laws in the country regarding dealing and possessing synthetic drugs, but these laws, and our safety, have been jeopardized” by the rulings, Merritt said. “As an attempt to clarify our state’s current law against synthetic drugs, I authored Senate Bill 93. As long as synthetic drugs are prominent in our communities, Hoosier lives are at risk.”
In response to the Tiplick decision, the state’s brief says, “Due process is not offended by the notion that citizens must look at a few statutes and a handful of administrative rules, all of which are easily accessible to the public, in order to determine the legality of a desired course of conduct.
“The Court of Appeals’ contrary conclusion has far-reaching implications given the broad array of areas in which criminal and administrative law intersect. … Indiana’s system simply mimics decades old federal law addressing the problem that the legislative branch could not act quickly enough to keep pace with the constantly changing chemical structures of ‘designer drugs.’”