Voiding the Analogue Act

Abstract

This article defends Justice Neil Gorsuch’s suggestion that the Federal Analogue Act (“Analog Act”), a statute criminalizing all substances “substantially similar” to Schedule I and II narcotics, should be voided for vagueness using the same rationale employed by Johnson v. United States. This article also explores alternative rationale sfor voiding the statute as unconstitutionally vague. Whether under Johnson or traditional void for vagueness doctrine, the Analog Act fails to satisfy criminal due process requirements. In its attempt to draft a law broad enough to prospectively criminalize all possible future narcotics, Congress created a statute so vague as to prevent any advance knowledge of the substances criminalized while also leaving every substance in a superposition of legal states as both legal and illegal. “Substantially similar” possesses no statutory or scientific definition, leading juries to routinely reach opposite conclusions on the same substance’s legality and depriving defendants of advance notice. No scienter requirement cures this vagueness. In McFadden v. United States, the Supreme Court’s attempt to resolve the decades’ old scienter circuit split effectively opened the permissible range of scienter so wide as to permit prosecutions for mundane substances: possessing chocolate while knowing it contains a controlled substance analog permits prosecution for methamphetamine possession. The Analog Act’s vagueness and narrow scope also frustrate prosecutions for even the most dangerous analogs, a failure hobbling law enforcement and directly contributing to the proliferation of synthetic cannabis, the MDMA-like “bath salts,” fentanyl analogs, and the coming crisis of unregulated benzodiazepines. Yet at the same time the Analog Act’s great breadth threatens the emerging hemp industry by criminalizing CBD and other cannabinoids intended by Congress to be exempt from criminal restrictions. As illustrated by Congress’s synthetic cannabis legislation and the DEA’s categorical ban on fentanyl analogs, the Analog Act has long outlived its marginal value as flexible modern substance-specific prohibitions protect against emerging psychoactive substances without trampling constitutional protections.