By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
Two weeks ago, the House and Senate quietly passed the Illicit Drug Anti-Proliferation Act of 2003legislation aimed at quelling club drugs like Ecstasy and GHB. Ushered through with little fanfare, the act was piggybacked onto the AMBER Alert Bill, a package of child-safety laws with overwhelming congressional support. President Bush has promised to sign it into law in the upcoming weeks. But despite serious grassroots opposition spearheaded by organizations like the Electronic Music Defense and Education Fund, the bill passed without a Senate hearing. "It was backdoor legislation at its worst," says William McColl, director of national affairs for the Drug Policy Alliance, a group that lobbies for drug decriminalization.
The act expands upon the so-called "crack house" statutean '80s law allowing prosecutors to go after the owners of "crack houses," even if they're neither dealers nor users. In 2001, the DEA broke ground by aiming the crack house statute at a new targetthe owners and promoters of a concert venue, the State Palace Theater in New Orleans. A teenage drug overdose spurred the investigation, and the defendants were indicted for "knowingly and intentionally" allowing drug use to take place; evidence included overpriced bottles of water ($3; the same price at which the nearby Superdome sells them), chill-out rooms, and on-site ambulances. A plea agreement was reachedfining the business $100,000and surgical masks, glow sticks, and pacifiers were banned from the club. A year later, a federal judge overturned the ban on the grounds that it violated First Amendment rights.
The DEA has had mixed results prosecuting promoters using the crack house statute. The new incarnation requires a lower burden of proof by making business owners not only criminally but civilly liable for the acts of their patrons. It also applies to outdoor, as well as one-night-only, events. "It gives prosecutors a bigger hammer," says Marv Johnson, legislative counsel for the American Civil Liberties Union. "Even if they can't prove without a reasonable doubt, they can still go after you civilly and take away your profits, your property."
The brain behind the Illicit Drug Anti-Proliferation Act is Senator Joseph Biden, a longtime drug warrior who also helped create the crack house statute and the Office of National Drug Control Policy in the 1980s. The Delaware Democrat first introduced his legislation last year, when it was known as the RAVE (Reducing Americans' Vulnerability to Ecstasy) Act, and argued that the sale of expensive bottled water or glow sticks at an electronic-music event was evidence of Ecstasy use. It was met with a flurry of faxes protesting the act, spurring two of the bill's co-sponsors, senators Patrick Leahy and Richard Durbin, to drop their support.
The new version also drops the rave act. "It's venue neutral," says Margaret Aitken, Biden's press secretary. "That's why we changed the name."
The renamed Illicit Drug Anti-Proliferation Act no longer contains such inflammatory "indicators" of Ecstasy use (like glow sticks), but concerns over constitutional violations remain. "Business owners have come to Congress and told us there are only so many steps they can take to prevent any of the thousands of people who may attend a concert or a rave from using drugs, and they are worried about being held personally accountable for the illegal acts of others," wrote Senator Leahy in a statement he issued shortly after the Senate unanimously passed the AMBER Alert bill.
Just what constitutes "knowingly and intentionally" has also been something of an enigma to local businesses. Several Manhattan club owners seek assistance from Forensic Investigative Associatesa private company run by Bob Silbering, a former federal prosecutor who helped shut down the Limelight in 1994. Silbering is hired by everyone from the courts to the police to the clubs to evaluate a venue's security practices. He recommends that clubs search patrons, put up anti-drug signs, use cameras, and employ a sufficient number of trained security people. "You can't keep drugs totally out," says Silbering. "But you can take measures."
Anybody who's been to a concert, festival, or club in the last 50 years knows people do drugs, whether it is an acid tab ingested at a rock show, a line of cocaine inhaled in a discotheque, or more recently, a hit of Ecstasy taken at a superclub. It is because of this pervasive use that many fear the new law could curtail all kinds of concertsnot just raves. Like the State Palace Theater in New Orleans, the wildly popular SummerStage series often hosts DJ dance parties; trained medical staff are on hand and pricey bottled water is sold. Now that the law applies to outdoor and one-night-only events, it could be argued that the promoters of these shows "knowingly and intentionally" allow drug use.