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U.S. Sentencing Commission Reviews MDMA Guidelines

Madison Margolin

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Let this sink in: Criminal violations involving MDMA are often punished more severely than those for heroin or powdered cocaine, according to the federal public defenders analysis.

Finding logic behind the drug war can often be a tenuous task, leaving us to ponder disparities like this, often disproportionate to the risks associated with these substances. Finally however, after 16 years, the U.S. Sentencing Commission (USSC) is reviewing the MDMA guidelines.

Over a two year process that began with a hearing on April 18, there’s a chance the USSC could deliver lower sentencing guidelines for MDMA violations. Much like with marijuana, the advent of MDMA’s benefits could seep into public opinion about the drug in general—and potentially lead to more forgiving penalties.

“MDMA is one of the most severely sentenced drugs, right up there with crack and pure meth, and sentenced more severely than PCP, normal meth, LSD, heroin and cocaine,” says Dr. Paul Hofer, a lecturer at Johns Hopkins University in the department of psychological and brain sciences.

Currently, the MDMA sentencing guidelines are officially poised at a 500:1 sentencing disparity between MDMA and marijuana. (For context, coke sits at 100:1 .)

While in practicality the sentencing varies from court to court, criminal sanctions generally range, for instance in a state like California, from up to a year in jail, plus a $1,000 fine for personal possession of MDMA, to nearly nine years in prison and a $10,000 fine for sale and transportation.

Despite having been used in psychotherapy throughout the ’70s and early ’80s, the DEA classified MDMA as a Schedule I drug in 1985, deeming it a dangerous, addictive, easy to abuse and lacking any medicinal value. Then in 2001, at the height of rave culture—ecstasy spiked in popularity years after it was criminalized—the USSC increased the MDMA sentencing guidelines to make the penalties 500 times more severe than those for marijuana. The decision was in part a reaction to risky MDMA usage in rave settings, plus faulty science that’s since been discredited (no, rolling on molly won’t burn holes in your brain).

“In order to convince Congress that they didn’t have to make a mandatory minimum [sentence], [the USSC] reassured Congress that it would increase the penalties for MDMA, so it did so,” Hofer explained. “There is no coherent rationale. The guidelines in general are supposed to sentence different drugs based on their relative harmfulness.”

In the years since this decision, scientific research, especially from the Multidisciplinary Association for Psychedelic Studies (MAPS), has proven that when used responsibly, MDMA poses a low risk to the user and can even be medicinal. That’s what Rick Doblin, executive director of MAPS, sought to testify at the recent USSC hearing.

Doblin’s testimony came after the DEA’s Terry Boos, chief of the Drug & Chemical Evaluation Section.

“MDMA continues to be a serious drug of concern,” Boos said. “At the root of its widespread popularity is the mistaken belief that it’s a safe drug with little toxicity.” MDMA is in fact “neurotoxic,” Boos added, not to mention “addictive with unpredictable results.”

However, he never referenced any specific studies.

While the risks associated with MDMA do need acknowledgment, so too do its benefits.

According to now more than 5,000 studies on MDMA, research indicates that its sentencing severity is disproportionate to its harm, Doblin began. In numerous MAPS studies looking at MDMA for post-traumatic stress disorder, researchers have found the drug to have a high safety profile and beneficial results. MDMA reduces the activation of fear in the amygdala and allows patients to revisit, and heal from, past traumas without emotional reactivity, Doblin said.

To quote a study participant, one veteran said MDMA changed his life, allowing him to see his trauma without “fear or hesitation.” “Before I felt hopeless in the dark,” Doblin quoted. “Now I’m out of the darkness and the world is all around me.”

MAPS’ MDMA for PTSD research is entering the third and final phase of FDA-approved trials before the drug gets approval for prescription use within about five years. So far, of more than a hundred chronic resistant PTSD subjects, two thirds no longer had PTSD after working with MDMA in conjunction with long-term psychotherapy.

In nonclinical settings, MDMA fatalities are tragic but rare, said Doblin, often caused by dancing in hot spaces, becoming dehydrated or alternately drinking too much water by accident. MDMA emergency room visits comprise only 1.8 percent of total drug and alcohol visits and are usually caused by “acute psychological distress,” he said. The main concern with repeated use lies in its neurocognitive effects, rather than in bodily harms.

“I do think there are risks, but they’re controllable through harm reduction policies [like access to free water or a cool down room at raves] and nowhere near as severe as they’ve been portrayed in the past,” Doblin said. Moreover, in non-medical uses of MDMA, people experience some benefits, as well, he added.

It’s possible MDMA could follow the path of medical marijuana, the medicinal use of which changed public perception of the “drug” overall.

“Once [medical cannabis] was recognized to alleviate certain symptoms and problems, it was recognized then that some people do that on their own by self-medicating,” said Hofer.

“Before medical marijuana, people had this idea of the ‘evil weed,’ but when they saw its potential in medicine, it seemed more reasonable to use that in a recreational setting,” said Natalie Ginsberg, policy and advocacy manager at MAPS. The sentencing guidelines should be based in real science and evidence around the harms and benefits of MDMA, Ginsberg said, rather than sensationalist fear-mongering rumors.

It’s unclear what decision the USSC will arrive at come two years from now, but Ginsberg said she’s hopeful they’ve started the conversation and are reviewing the science presented to them. While it’s unlikely they’d absolve MDMA busts of any jail time, for some activists that’s the ultimate goal.

“This is an opportunity to learn a lesson from history and get it right this time, and while we’re waiting over the next 10 years for psychedelic therapy to get approved, we can also be taking concrete steps to save thousands of people from having their lives destroyed in the criminal justice system,” said Jag Davies, director of communications and strategy at the Drug Policy Alliance. “People who use psychedelics or MDMA shouldn’t be vulnerable to any form of criminal punishment.”

Even if psychedelic therapy is approved in the clinic, that won’t do anything to change the criminal penalties for people who use it medicinally outside supervised settings, Davies said.

“I think ultimately there’s this assumption that psychedelics have to get medicalized first before there can be any sort of public policy reforms, but I don’t think it’s that black or white,” he said. “Look at the way medical marijuana played out: At the same time states were passing medical marijuana laws, states and municipalities were passing marijuana decriminalization laws and policies to reduce arrests, and that played a large role in the support eventually for marijuana legalization.”

The medicinal use of MDMA is happening every weekend for thousands of people, just like for cannabis, said Emanuel Sferios, founder of DanceSafe. But when regulating these substances, it’s important to provide adults with safe legal access (“you can call it a civil rights argument,” he said) and keep it out of the reach of children.

“Prohibition fails at that,” he explained, elaborating on his concept of a national MDMA dispensary system. After taking a course to understand the risks and benefits of MDMA, they’d be able to obtain a certain amount per month, regulated through an ID card that tracks how much they get from different dispensaries.

“Medical cannabis is not about going to a clinic and smoking with a therapist, and this is also true with MDMA,” said Sferios. While the clinical protocols are particularly necessary with PTSD, in other therapeutic scenarios it’s possible for adults to safely, self-administer if they have the right education and harm reduction approach.

“The drug is widely used therapeutically outside these [clinical] environments,” he said. “That’s something the sentencing commission needs to know.”

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