This spring, Senators Dianne Feinstein (D-Calif.) and Chuck Grassley (R-Iowa) introduced the “Protecting Kids from Candy-Flavored Drugs Act of 2017.” The Act defines a new category of drug crime – selling candy-flavored drugs to children – and imposes a harsh punishment for it. Critics of the bill have questioned whether candy-flavored drugs are really a national menace requiring federal legislation.
Beyond the Act’s risible purpose, the language of the bill itself is also deeply flawed. Senators Feinstein and Grassley have drafted legislation that uses overly broad terms to impose excessively harsh sentences. The law is thus not only pointless; it also both dangerous and draconian.
According to the Candy-Flavored Drugs Act, any defendant convicted of:
“(1) manufacturing, creating, distributing, dispensing, or possessing with intent to distribute a controlled substance … that is —
(A) combined with a candy or beverage product;
(B) marketed or packaged to appear similar to a candy or beverage product; or
(C) modified by flavoring or coloring to appear similar to a candy or beverage product; and
(2) knowing, or having reasonable cause to believe, that the controlled substance will be distributed, dispensed, or sold to a person under 18 years of age,”
shall be subject to:
“an additional term of imprisonment of not more than 10 years; and …
in the case of a second or subsequent offense involving the same controlled substance … an additional term of imprisonment of not more than 20 years.”
The language in this bill is extremely broad and extremely punitive. There are three problems in particular:
1. Including Drinkable Drugs: The Act does not just apply to candy-flavored drugs, but also any drug combined with “a beverage product.” A “beverage” is any drinkable liquid. This means that someone could be prosecuted under the Act for dealing in drinkable drugs, not just candy-flavored drugs. Yet the stated point of the bill is to punish dealers in sweet-flavored substances that can be marketed to children– “candy bracelets containing ecstasy; gummy bears laced with Xanax; and candy laced with THC.” By also including drugs mixed with “beverage product[s],” the Act pointlessly increases the penalties for dealing in drinkable drugs, such as cannabis tinctures, ayahausca, or mushroom tea, that are unappealing to children.
2. Minimal Mens Rea: The Act defines the crime by using an easily-satisfied mental state: “knowing, or having reasonable cause to believe,” that the candy-flavored or drinkable drug will be given to a minor. In other words, a person violates the act even if he does not intend that his drugs will end up in the hands of children – it only requires that he should have known that they would. This minimal mens rea requirement could include parents who store pot brownies in the back of their freezer if their children have access to the area. It might also cover a partygoer who pours a cup of purple drank for a friend, if it turns out there are also minors at the event. Setting the crime’s mental state so low is particularly dangerous because prosecutors won’t necessarily have to prove it to a jury – they need only threaten defendants with enhanced penalties in order to win guilty pleas.
3. Excessive Punitiveness: For a first-time offender, the Act imposes an additional ten years’ imprisonment. For a repeat offender, it adds twenty years. That’s insane. Prison sentences are meant to punish the defendant and deter future offenses. Dealing in candy-flavored drugs is not so vile or so lucrative that it merits an additional ten years imprisonment, on top of whatever the defendant receives for the base drug offense. By comparison, ten years in prison is a little less than the average total punishment for child sexual abuse, and it is twice as long as the average total sentences for manslaughter and arson. Contrary to the emerging, bi-partisan consensus in favor of reducing prison sentences, the Candy-Flavored Drugs Act reflects unwise, bi-partisan action towards increased severity.