Public hearing for county’s proposed synthetic drug law is this week

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A new draft of Cortland County’s synthetic drug law, which prohibits the sale and possession of intoxicating chemical compounds meant to mimic the effects of controlled substances, includes harsher penalties for violators

A public hearing on the law is slated for the Cortland County Legislative Session at 6 p.m. Thursday, with a pending vote scheduled for December.

The new draft was discussed at last week’s Judiciary and Public Safety Committee meeting, with committee chair Kelly Preston (R-LD-10) noting the law has been in discussion for more than a year. She said the legislature is keen on hosting a public hearing and taking a vote in December.

“So that on Jan. 1 of 2023 we have this local law in the books,” Preston said.

One of the significant changes to the local law is its broadening language, which according to county attorney Victoria Monty would focus on substances “mislabeled or unlabeled that have the intended purpose of being ingested, inhaled, or injected, to mimic the effects of controlled substances and/or marijuana and that have no other legitimate therapeutic use or purpose.”

The county’s legal team also decided against specifying a chemical formula to identify the substances targeted by the local law.

“Frankly, we can’t keep up with (the manufacturing of new drugs),” Monty said. “If (we include a formula that) is too specific, it is going to be a problem to try and enforce the law or prosecute it.”  

Narrowly tailored language has been an issue for county law enforcement trying to enforce Cortland’s 2012 local law regulating the use, distribution, and possession of synthetic marijuana. County sheriff Mark Helms said the formula for synthetic marijuana has changed, thus weakening the local law.

Perhaps its most impactful change brought on by the new draft lies in its penalties. A prior draft of the local law outlined that violators would be subject to be charged with a Class “B” misdemeanor and subject to a definite term of imprisonment not to exceed three months and/or a fine not to exceed $500. Each day an individual is found to be in violation of the law constitutes a separate offense, the law states.

The new draft ups the severity of the charges, making violators subject to be charged with a Class “A” misdemeanor. The new definite term of imprisonment should not exceed one year and the potential fine would be of up to $1,000. A term of probation not to exceed three years was also added in the latest draft. 

On why the penalties were changed, Monty offered two reasons. The first is that the county’s 2012 local law regulating synthetic marijuana already lists a Class “A” misdemeanor as a potential penalty. Monty noted it would make sense to bring the “bath salts” law to parity with the previous synthetic marijuana law.

The second line of reasoning, Monty said, is that a potential probationary term would be diminished if individuals were charged with a Class B misdemeanor. She added a longer probationary term could help individuals dealing with substance use disorder to overcome the issue.

“A Class ‘B’ misdemeanor is also not much of a dissuading factor for a lot of people,” Monty said. “It is no big deal.”

Helms and the county’s legal team spoke with relevant personnel in contiguous counties regarding their enforcement of the law. They said a similar law had been enacted a decade ago in counties like Onondaga.

Helms said the county could find similarities with Cayuga County. in enforcement of the proposed local law.

“They use it mostly like I expect us to be using it,” he said. “Not all the time, but it fits certain criteria where there is nothing else. It is a great help to us.”

Mechthild Nagel, a professor of philosophy at SUNY Cortland, has opposed the law from its inception. Nagel criticized the piece of legislation as a part of American drug law, which she noted lacks imagination when it comes to finding solutions to problems of incarceration and substance use disorder.

She sees the proposed law as an extension of police powers, as well as a potential threat to personal liberties. Nagel is an expert in alternatives to mass incarceration and has written extensively on the abolition of prisons.

“The punishment indeed is very severe. We're going now, from three months to one year in county jail by upping the schedule from (Class ‘B’ to Class ‘A’) to send a message,” she said. “In general, I can tell you just by looking at the history of police powers in so-called drug wars, it has never sent the intended message.”

For Nagel, people dealing with problems of addiction are less likely to think about the punishment that comes with consuming or dealing illicit substances.

“They will always assume they will not be caught. They have an addiction problem and they have to chemically treat their brain because nothing else seems to work for them,” she said. 

Instead of punitive carceral measures, Nagel said, the county should emphasize alternatives that stress a harm reduction approach. Harm reduction is defined by the U.S. Department of Health & Human Services as an “approach that emphasizes engaging directly with people who use drugs to prevent overdose and infectious disease transmission, improve the physical, mental, and social wellbeing of those served, and offer low-threshold options for accessing substance use disorder treatment and other health care services.” This approach has been long-touted by drug policy reform advocates as a pathway to solutions and now the widely adopted paradigm for the federal and state governments.

“The strongest point is working with the local folks who are trying to do their best to get treatments and services that are probation or drug court,” she said. “Those measures are attached to police powers and they also don't work. We basically need to continue on the path of decriminalization and offering support services because that's the only thing that has ever worked, really.”