Opinions and conclusions in articles published in the Army Lawyer are solely those of the authors. They do not necessarily reflect the views of the Judge Advocate General, the Department of the Army, or any other government agency.
Trying to get some relaxation, [Specialist Bryan Rodebush] sat on a balcony in Waikiki, Hawaii, and took five hits off a small pipe packed with a drug called spice. He stepped back inside, dozed off on the couch beside his girlfriend Ola Peyton, and then--as if in a trance--he beat Peyton senseless and nearly pushed her off the 11th floor balcony. He was charged with attempted murder.1
I. Introduction
Servicemembers are dying, engaging in heinous criminal acts, and adversely affecting military readiness while under the influence of designer drugs.2 Until recently, judge advocates found themselves without the tools, policies, and laws necessary to successfully combat and prosecute servicemembers who were seeking and getting a legal “high” from designer drugs. Several states, the federal government and, in particular, the Department of Defense (DoD) recognize the dangers associated with the use of designer drugs and have taken drastic action to combat this rising epidemic.
Servicemembers in search of a new high have had easy access to these designer drugs, since they can purchase the substances in local stores, order them on the Internet, or find the ingredients in common household chemicals. This ease of access is a contributing factor to the epidemic. Several stores are selling these types of products and marketing them as incense “not intended for human consumption” as a ploy to escape regulation by the Federal Drug Administration (FDA).3 Military commanders are committed to combating this craze and have focused on this problem by creating policies, campaigns and crime-tip websites to deter the use of designer drugs.4 Each branch of the military has a similar policy reflecting its approach to dealing with designer drugs.
Additionally, the Division of Forensic Toxicology, Armed Forces Medical Examiner System (AFMES) and the U.S. Army Criminal Investigation Laboratory (USACIL) now have the ability to test for the illegal compounds found in spice, bath salts, and other designer drugs.5 This article will show that the recent changes in the law and new developments within the DoD provide judge advocates with the resources necessary to aggressively prosecute or administratively dispose of cases involving designer drugs. A sample charge sheet, a local command policy memorandum, and a charging decision matrix are included to assist trial counsel with the case disposition decision.
II. Defining Spice, Bath Salts, Salvia, and Huffing
Designer drugs are becoming increasingly popular within the ranks of each military branch.6 Before adding any type of designer drug charge to a charge sheet, trial counsel should be familiar with the chemical composition of the alleged designer drug and its effects. Doing so will assist the trial counsel in identifying specific violations of applicable *16 regulations and command policies, and further assist them with effectively explaining the offense to panel members and the military judge. Furthermore, the effects of the drugs are relevant to prove the accused's intended purpose for their particular use or possession of the illicit substance, i.e., to get “high” as opposed to use as an incense to make their quarters smell better.7
A. Spice
Spice is a green leafy substance that resembles marijuana.8 It produces euphoria, psychosis, respiratory problems, and low blood pressure; however, lower doses usually result in calming sensations.9 Spice is comprised of a combination of different plant materials. To avoid criminal liability, manufacturers are continuously altering the chemical makeup of spice, to allow the distribution of other types of legal cannabinoids that produce the same or similar high.10
B. Bath Salts
Bath salts, or designer cathinones, are synthetic stimulants found in numerous retail products.11 These should not be mistaken for the traditional bath salts commonly used while bathing.12 They are marketed as such to avoid being classified as illegal.13 Bath salts are sold in small plastic or foil packaging most often in white, off-white, or yellow powder form, or in some cases as a tablet or capsule.14 They have similar effects as cocaine, acid, amphetamines, and ecstasy.15 Side effects include, but are not limited to, paranoia, seizures, panic attacks, suicidal gestures, rapid heart rate, and an impaired perception of reality.16 It is normally ingested by snorting, but can also be taken orally, smoked, or put in a solution and injected intravenously.17
C. Salvia Divinorum (Salvia)
Salvia is a green, leafy perennial herb in the mint family, often used by the Mazatec Indians during rituals and healing.18 Salvia is being increasingly used for its hallucinogenic effects. The use of salvia can disrupt sensory and cognitiv