Drug Law

Ecstasy Legal Penalty Same as Cocaine, 200 Times Harsher than Pot

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MANHATTAN --- Despite finding that cocaine is "significantly more harmful" than ecstasy, a federal judge gave both drugs equally harsh sentencing guidelines, meaning that each drug carries legal consequences 200 times harsher than marijuana.

The director of the American Civil Liberties Union's Criminal Law Reform Project said in a phone interview that the ruling was a step in the right direction because the former guidelines regarding MDMA, ecstasy's chemical name, were much harsher.    

"I think that it's a significant step toward the recognition that MDMA is not as harmful as described by the commission at the time it set the offense level," Jay Rorty said, referring to the U.S. Sentencing Commission. "It's also important because it demonstrates a district judge's willingness to undertake a thorough review of the empirical basis underlying the guideline to update a guideline based on scientific advances."

Until 2001, federal guidelines called for drug offenses related to MDMA to be punished only 35 times stricter than marijuana.

Congress ordered the commission to review that standard and increase the penalties with the Ecstasy Anti-Proliferation Act in 2000.

The Sentencing Commission later submitted a report revising the MDMA-to-marijuana ratio to 500-to-1 grams, significantly harsher than cocaine - but less than the 1,000-to-1 standard for heroin.

Sean McCarthy, who pleaded guilty to selling MDMA pills to an undercover agent, challenged that standard as unfair.

On Thursday, U.S. District Judge William Pauley III sharply reduced the Sentencing Commission's previous spike, but denied McCarthy's request to treat MDMA as the equivalent of marijuana or adopt the pre-2001 standard.

In his nine-page order, the judge blasted the commission's "opportunistic rummaging" and "selective and incomplete" analysis, writing that the evidence shows that cocaine is "significantly more harmful" than ecstasy.

"There is no question that MDMA use has several significant negative impacts," the order states. "Yet the Commission's analysis of these impacts-particularly as compared to cocaine-was selective and incomplete. Rather than comparing the full range of health effects of MDMA and cocaine, for example, the Commission focused only on a single health effect: neurotoxicity. In doing so, the Commission ignored several effects of cocaine that render it significantly more harmful than MDMA."

A report by the U.S. Department of Health and Human Services, "Drug Abuse Warning Network 2007: National Estimates of Drug-Related Emergency Department Visits," found that cocaine abuse was responsible for 29.4 percent of all emergency room visits, while MDMA was responsible for only 0.7 percent, the judge noted.

"As the Government's witnesses acknowledged, MDMA fatalities are 'rare,'" the order states.

The judge also wrote that cocaine is "far more addictive" than ecstasy.

"Indeed, MDMA is 'one of the least addictive drugs,'" the order states. Cocaine poses risks for heart attacks, chest pain, respiratory failure, strokes and seizures - none of which are correlated with MDMA use, according to the order.     

"The foregoing illustrates that the Commission's analysis focused on the few ways in which MDMA is more harmful than cocaine, while disregarding several significant factors suggesting that it is in fact less harmful," the order states.

Just as it adopted lighter sentences for MDMA than for heroin on the basis of factors like criminal frequency and addiction potential, the commission should have made a similar comparison for MDMA and cocaine, according to the decision.

"The Commission's selective analysis is incompatible with the goal of uniform sentencing based on empirical data," Pauley wrote.

Still, McCarthy failed to prove that MDMA had similar health effects as marijuana. The Sentencing Commission argued, and McCarthy denied, that MDMA is neurotoxic, marketed to young people and hallucinogenic in addition to being a stimulant.

The judge concluded that the first two claims were credible, but the alleged hallucinogenic properties of MDMA are "without factual support and largely irrelevant."

A spokeswoman for the U.S. Attorney's Office declined to comment on the order.

Jay Rorty, McCarthy's lawyer with the ACLU, told Courthouse News that he hopes this ruling causes other sentencing guidelines to be reconsidered.

"Many of the drug guidelines, similar to MDMA, require reconsideration in light of our new understandings of the harms actually represented by drugs, not those harms which are perceived by Congress," Rorty said. "Too often, as with crack cocaine, guidelines have been set in response to public hysteria surrounding the perceived harms of a drug."

The phone interview occurred hours after the Supreme Court upheld a decision to release 46,000 inmates from California prisons.

While that decision impacted the prison system of just one state, Rorty said he hopes it will prompt a "rational reconsideration" of penalties for nonviolent drug offenders.     

"I certainly hope a rational reconsideration of elevated guidelines would relieve the federal prison population of a number of non-violent offenders who do not require incarceration," Rorty said.
McCarthy, who has been in prison for 14 months, is presently scheduled to be sentenced on June 3.

Rorty will request a sentence of time served, while the prosecutors will request a guideline sentence.

From Courthouse News