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Chip Unruh is spokesman for Senator Joseph Biden(D-Del.) He responded below to a commentary by Ethan Straffin that appeared on BBSNews Friday. Unruh states that "the Biden bill doesn't give the feds any sweeping new powers" even as he carefully explains how the legislation expands the "Crack House" statute to cover "single-event" activities, and widens the language to include outdoor events:

BBSNews - 2003-05-04 -- Ethan: I read your piece: "Senator Biden Attaches Hated RAVE Act to Popular New Amber Alert Bill" and although I disagree with quite a bit of what you say, I respect your right to oppose it. But I just want to clear up a few things.

1.) Your line about hoping an event gets "shut down by the feds because The Organizers Should Have Known That There Might Be Drugs There" leads me to believe that you have the Biden bill confused with another bill out there, "The CLEAN UP Act." The CLEAN UP Act was introduced by Rep. Doug Ose (R-CA) and says that anyone who "knowingly promotes any rave, dance, music, or other entertainment event, that takes place under circumstances where the promoter knows or reasonably ought to know that a controlled substance will be used or distributed."

Senator Biden never introduced, supported, or had any association with this legislation. That bill specifically targets raves, rather than being venue-neutral (like the Biden bill); and it also has a much lower standard than the Biden bill (see below), triggering liability if a concert promoter "should have known" that drug activity was going on.

2.) The Biden bill DOES NOT APPLY to events where incidental drug use may occur.

The Biden bill amends 21 USC 856, the so-called "crack house statute," a law which has been on the books since 1986 making it illegal to "knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance." The Biden bill amends current law in two ways:

(1) by clarifying that the law applies not just to ongoing drug distribution operations, but to "single-event" activities, such as a one night event sponsored for the purpose of distributing illegal drugs.

(SIDE NOTE: In 1992 the 11th Circuit Court held that government had to show "continuous violation", in order to prove violation of the crack house statue.

In contrast, that same year, the 5th circuit held that a single incident (meaning over the course of a single day) was sufficient to violate the law. The courts wanted clarification from Congress so this law clarifies the discrepancy between the two Circuits.)

(2) by applying the law to outdoor as well as indoor venues.

Senator Biden fully recognizes that there will always be certain people who will bring drugs into musical or other events and use them without the knowledge or permission of the promoter or club owner. This is not the type of activity that the Biden bill addresses. The purpose of the legislation is not to prosecute legitimate law-abiding managers of stadiums, arenas, performing arts centers, licensed beverage facilities and other venues because of incidental drug use at their events. In fact, when crafting this legislation, Senator Biden took steps to ensure that it did not capture such cases ("KNOWINGLY" and "FOR THE PURPOSE OF" are incredibly high legal bars!!!). The bill would help in the prosecution of unscrupulous, rogue promoters who not only KNOW that there is drug use at their event but also hold the event FOR THE PURPOSE OF illegal drug use or distribution.

In conclusion, the Biden bill doesn't give the feds any sweeping new powers. This legislation simply applies a law that is already on the books to include OUTDOOR as well as indoor venues and clarifies a split between the 5th and 11th Circuit courts about whether Congress intended the 1986 law to apply to continuous or ONE NIGHT ONLY events.

Lastly, I believe that its not our bill that may have a chilling effect on the music or club scene, nor will it endanger anyone's First Amendment rights.

Rather, it's the false statements being made about the bill that may scare legitimate business owners into thinking they can be prosecuted if someone at their club happens to use drugs, even if they "ought to have known drug use may occur there." I know you don't mean to, but by continuing to spread this false information you are actually hurting many of the people who you, as well as Senator Biden, are seeking to protect.

I'm not asking you to take my word on any of this. Please read for your self exactly what our bill says. Here is the language of our bill in its entirety (its not very long but the part you will be most interested in I'm sure is Section 2):

S. 226 IN THE SENATE OF THE UNITED STATES January 28, 2003

Mr. BIDEN (for himself, Mr. GRASSLEY, Mr. LIEBERMAN, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To prohibit an individual from knowingly opening, maintaining, managing, controlling, renting, leasing, making available for use, or profiting from any place for the purpose of manufacturing, distributing, or using any controlled substance, and for other purposes.

S. 226

IN THE SENATE OF THE UNITED STATES

January 28, 2003

Mr. BIDEN (for himself, Mr. GRASSLEY, Mr. LIEBERMAN, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Illicit Drug Anti-Proliferation Act of 2003'. SEC. 2. OFFENSES.

(a) IN GENERAL- Section 416(a) of the Controlled Substances Act (21 U.S.C. 856(a)) is amended--

(1) in paragraph (1), by striking `open or maintain any place' and inserting `open, lease, rent, use, or maintain any place, whether permanently or temporarily,'; and

(2) by striking paragraph (2) and inserting the following:

`(2) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.'.

(b) TECHNICAL AMENDMENT- The heading to section 416 of the Controlled Substances Act (21 U.S.C. 856) is amended to read as follows:

`SEC. 416. MAINTAINING DRUG-INVOLVED PREMISES.'.

(c) CONFORMING AMENDMENT- The table of contents to title II of the Comprehensive Drug Abuse and Prevention Act of 1970 is amended by striking the item relating to section 416 and inserting the following:

`Sec. 416. Maintaining drug-involved premises.'.

SEC. 3. CIVIL PENALTY AND EQUITABLE RELIEF FOR MAINTAINING DRUG-INVOLVED PREMISES.

Section 416 of the Controlled Substances Act (21 U.S.C. 856) is amended by adding at the end the following:

`(d)(1) Any person who violates subsection (a) shall be subject to a civil penalty of not more than the greater of--

`(A) $250,000; or

`(B) 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person.

`(2) If a civil penalty is calculated under paragraph (1)(B), and there is more than 1 defendant, the court may apportion the penalty between multiple violators, but each violator shall be jointly and severally liable for the civil penalty under this subsection.

`(e) Any person who violates subsection (a) shall be subject to declaratory and injunctive remedies as set forth in section 403(f).'.

SEC. 4. DECLARATORY AND INJUNCTIVE REMEDIES. Section 403(f)(1) of the Controlled Substances Act (21 U.S.C. 843(f)(1)) is amended by striking `this section or section 402' and inserting `this section, section 402, or 416'.

SEC. 5. SENTENCING COMMISSION GUIDELINES.

The United States Sentencing Commission shall--
(1) review the Federal sentencing guidelines with respect to offenses involving gamma hydroxybutyric acid (GHB);

(2) consider amending the Federal sentencing guidelines to provide for increased penalties such that those penalties reflect the seriousness of offenses involving GHB and the need to deter them; and

(3) take any other action the Commission considers necessary to carry out this section.

SEC. 6. AUTHORIZATION OF APPROPRIATIONS FOR A DEMAND REDUCTION COORDINATOR.

There is authorized to be appropriated $5,900,000 to the Drug Enforcement Administration of the Department of Justice for the hiring of a special agent in each State to serve as a Demand Reduction Coordinator.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS FOR DRUG EDUCATION. There is authorized to be appropriated such sums as necessary to the Drug Enforcement Administration of the Department of Justice to educate youth, parents, and other interested adults about club drugs.

Senator Patrick Leahy on the Rave Act

"I am also concerned about the inclusion of the Illicit Drug Anti-Proliferation Act in this conference report. This bill has drawn serious grass-roots opposition, and I know that I am not alone in hearing from many constituents about their serious and well-considered objections to it. Despite this opposition, and even though the Senate has never held a hearing on this bill, the conference committee agreed to include it in this hastily-assembled package.

I know that Senator Biden has made changes to the bill since the last Congress, beginning with its title, and I appreciate his flexibility. But these changes do not address some of the questions that have been raised about this legislation.

The bill’s primary purpose is to expand the existing “crack house statute,” (21 USC 856) which makes it unlawful to knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance, or to make a place available to someone else for use for such purposes or for storing a controlled substance. The bill would expand the statute to include those who lease, rent, or use property, including temporary occupants, and would allow for civil suits against violators.

The crack house statute has been on the books for more than 15 years, and for most of its existence, federal prosecutors have used it solely against property owners who have been directly involved in committing drug offenses. The House Judiciary Committee, however, heard evidence last year that the Drug Enforcement Administration and prosecutors are now using the “crack house statute” to pursue even business owners who take serious precautions to avoid drug use at their events. 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. Those concerns may well be overstated, but they deserve a fuller hearing.

In addition, the provision allowing civil suits dramatically increases the potential liability of business owners. Of course, this is a good thing when applied against those who are knowingly profiting from illegal drug use. But we have been told that even conscientious promoters may think twice before holding large concerts or other events where some drug use may be inevitable despite their best efforts. I do not know enough to know whether that claim is exaggerated, but I think we would have been well-served by making a greater effort to find out."

Boston Phoenix Asks "Is Senator Biden a sneaky bastard?"

And answers that his renamed and stealthily attached additional language to the Amber Alert Bill does indeed look pretty sneaky. Chip Unruh was critical of accusations that the bill will snare just about anybody in any venue and Phoenix writer Camille Dodero writes of the most obvious question to drug policy reformers and activists, "While Unruh may have a point — this particular bill might require prosecutors to prove beyond a reasonable doubt that a property owner was aware that people were using the place for drugs — it does leave some gray area for events like, say, MASSCANN/NORML’s annual Freedom Rally. Could the organizers of a hemp rally be held responsible for every drug arrest at their event? "Is the purpose of it for people to smoke marijuana, or is it for people to learn about hemp?" says Unruh." The federal government would have to prove that the purpose was smoking marijuana."

Ethan Nadelmann, Executive Director of the Drug Policy Alliance said in a press release April 30th, 2003 "we will take on Attorney General John Ashcroft and the DEA every time they use the RAVE Act to try to shut down electronic dance events, raves, rock and hip hop concerts, hemp festivals, circuit parties, and other events. We will organize thousands of people to oppose this new government intrusion. We will launch an aggressive and relentless lobbying campaign to repeal the RAVE Act."

In a Journal Times editorial from Racine Wisconsin, the writer posits that a third political party may even spring forth from this sneaky legislation that was defeated once by grassroots activism, and talks about just how sweeping this bill is being viewed: "What's scary is the breadth of the law. Touted as a bill to fight raves - which truly can be dangerous - it actually opens up any club owner, concert provider and Major League Baseball owner to massive fines and lengthy prison sentences.

The bill allows federal prosecutors to press charges against anyone who holds an event where there is drug use on the premise. If taken literally, this could include any public event where someone is using drugs - be it an industrial rave in an abandoned warehouse or a Jimmy Buffett concert."

Biden spokesman Unruh is clearly being disingenous by trying to deflect the reality of the Rave Act renamed and slammed through Congress without hearing by virtue of being attached to the popular Amber Alert legislation. By claiming to Ethan Straffin that he must have confused the snuck through Rave Act for The CLEAN UP Act he tries to change the subject. And then complicates the sidestepping of the issue even further by claiming that since Biden's act is "venue-neutral," thereby including a even local party where a few neighbors chip in on a keg of beer, this distinction somehow makes the Rave Act more targeted. As Unruh suggested let's read again the key part of what even Patrick Leahy still calls the Rave Act:

"manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance."

Even to a layman "make available for use, with or without compensation" looks quite scarily as if it could be applied to an individual being overheard inviting another individual over to their home to smoke a joint. Unruh claims that this is a "high legal bar" and even uses three exclamation marks to underscore his claim. A plain reading implies that an individual inviting someone over and specifying that marijuana or some other drug would be used would trigger the full force of this law for it clearly specifies "temporarily" and expands the law to seemingly include even outdoor barbecues. It is very hard to see in light of the language of the bill that any possible protest against marijuana laws would escape unscathed. More probably getting permitting or being able to rent a venue for an anti-prohibition rally where civil disobedience and soft drug use may be likely will now be severely curtailed because of property owners legitimate concerns that they will face 20 years in prison, a quarter of a million dollar fine and "declaratory and injunctive remedies".

And that part about "If a civil penalty is calculated under paragraph (1)(B), and there is more than 1 defendant, the court may apportion the penalty between multiple violators, but each violator shall be jointly and severally liable for the civil penalty under this subsection."

It's no wonder Patrick Leahy and Richard Durbin dropped their original co-sponsorship. This sounds like a pure criminal and civil prosecutorial bonanza. Biden has finally succeeded where many others have failed, he's managed to outlaw even the smallest "smoke-in" and the disasterous consequences of the War on Some Drugs, the sequel, continue.

Michael Hess is the Editor of BBSNews in Charlotte, NC. Write to the editor here. Not all submissions are published. Or visit the completely new BBSNews Blog and Forum on our front page - Please Participate in BBSNews!