Cops just can't keep up with latest designer-drug threats

DULLES, VA. - Day after day, inside a tightly guarded federal lab, chemist Arthur Berrier probes packages of dangerous new synthetic drugs in search of secrets he can share with criminal investigators before the substances kill or seriously harm someone else.

It's a constant game of catch-up. As soon as he tips off law enforcement officials to the kinds of chemical compounds turning up in the drugs, another form of them emerges.

Manufacturers of the drugs can choose from an almost endless menu of chemicals that they can concoct, putting the U.S. Drug Enforcement Administration at a disadvantage as it tries to help states crack down.

"They're keeping ahead of us," Berrier said.

From the DEA research lab here on the suburban fringe of the nation's capital, to small-town sheriff's offices across the country, taming the rising menace of synthetic drugs remains a losing battle.

Hardly anyone saw the scourge coming. The wild names and strange mixes of substances contained in the drugs are constantly changing, quickly rendering state or federal bans against them weak or moot. Enforcing new laws against synthetic drugs -- sometimes sold as harmless "bath salts" over the Internet by shadowy foreign companies or at local stores -- is also difficult. And police departments in places swamped by the drugs say they lack either the resources or the expertise to respond to the problem.

"For us, this is just getting bigger and bigger," said Thomas Duncan, Berrier's boss at the Virginia research lab. "We had no idea."

Berrier's testing and research is vital to the emerging law enforcement struggle against synthetic drugs, which in the past year have caused deaths and debilitating injuries across the country, including Minnesota.

It also illustrates just how difficult winning the battle may be.

Berrier is one of 46 chemists working in this nondescript facility in a Virginia suburb. It's one of nine DEA labs around the country, but this is the one where chemists spend all of their time using science to help the government take down drug kingpins and warlords.

The compound is surrounded by a 12-foot fence and video cameras. Drugs are kept in a massive vault. Each day, chemists sign out a personal metal lockbox and take it to one of the labs ringing a courtyard at the center of the complex. The boxes return to the vault at the end of the day.

There are full-time teams of chemists assigned to three drugs: methamphetamine, cocaine and heroin. So far, however, there is no full-time synthetics team.

"We have discussions ... all the time," Berrier said. "What do we do? What can we do?"

For Berrier, synthetic drugs started as a simple exercise. In 2007, the DEA wondered what was in packets of "incense" being sold at U.S. record shops and convenience stores. He said many assumed the products contained a legal blend of plant materials.

Instead, he discovered synthetic cannabinoids that produce a reaction similar to the active ingredient in marijuana. "Then everybody was interested in it," Berrier said.

He got the agency to start making undercover purchases of synthetic drugs so he could test them. The subject didn't take on real urgency until early 2010, when agents in Chicago seized 1,000 grams of powder JWH-018, a psychoactive chemical often used to make synthetic pot. It was the first time officials saw more than a gram of the material show up anywhere, Berrier said.

He told the agents to release the shipment because the chemical was legal at the time. Later that year, the DEA announced that it would use its emergency powers to ban JWH-018 and four other chemicals used in fake pot.

To help out, Berrier is constantly developing new testing protocols that he shares with other investigators. The DEA is also using the lab as a training center, bringing in forensic chemists from various states three or four times a year.

"There are so many new drugs coming out, we need to be able to say 'Look out!' " Berrier said.

Many raids, fewer arrests

In the states, the uphill battle against synthetic drugs didn't really start until this year.

One of the first states to go after the products was Florida, where the attorney general used emergency powers to temporarily outlaw a popular bath salt chemical in January. The state subsequently banned five chemicals in synthetic pot. Altogether, 43 states have passed or proposed laws banning specific chemicals contained in synthetic drugs.

In Florida, officials in Palm Beach County had to return 800 packets of incense seized from the mail after tests showed the packages contained chemicals that were not illegal.

Tate Yeatman, toxicology and chemistry manager for the Palm Beach County Sheriff's Office crime lab, said drugmakers can pick from hundreds if not thousands of available chemicals.

"It makes it very difficult and it requires us to spend a lot of time analyzing substances that ultimately do not lead to any charges," Yeatman said.

It's hard to tell how many arrests have been made under the new laws because federal officials have not compiled that data, like they do for other crimes. But a review of publicly available reports does not indicate a major crackdown in the works.

Through the first eight months of this year, police made about 200 arrests. Among those charged: three dozen store clerks caught selling synthetics and more than 100 drug users acting out in crazy or violent ways.

A catch-all strategy

Some states are trying to address the problem of ever-changing drugs by doing what the feds did 25 years ago: Pass broad laws banning substances that mimic illegal drugs like cocaine and marijuana without naming specific chemicals.

Such analog laws give police and prosecutors flexibility. But the cases also are tougher to win. Not only must prosecutors prove that the substances are chemically similar to illegal drugs, they must also show that these products do the same things to the human body. That requires scientific testing, which has yet to catch up with these newer chemicals.

Prosecutors also must prove the products were meant to be consumed like illegal drugs, despite the widespread use of labels that claim: "Not for Human Consumption."

Federal authorities acknowledge that the analog law has been used in just a handful of cases since it was enacted in 1986. Specific numbers were unavailable.

One of the biggest victories involving the federal analog law took place in 2004, when the government toppled a nationwide network of synthetic drug dealers who used Internet sites to sell synthetic research chemicals. One of the last suspects to get caught was Lee Michael Badrak, a North Dakota dealer who was sentenced to five years in federal prison.

"Our preliminary hurdle was: 'Is this a controlled substance?' No, not at present. Then, 'Is it similar?' " said Scott Schneider, the assistant U.S. attorney who prosecuted the case. "That's what is difficult. You have to build the scientific case to prove that it is an analog substance."

More recently, federal authorities used the law to convict a man and his two sons who distributed more than $200,000 worth of bath salts in West Virginia and Kentucky before getting caught earlier this year.

While many states, including Minnesota, have included analog provisions in synthetic drug laws, legal experts said it's not clear whether those catch-all laws are constitutional.

"Government attempts to 'stay ahead' of the designers of mind-altering drugs do pose potential problems of vagueness and ill-considered, over-hasty lawmaking," said Prof. Richard Frase of the University of Minnesota Law School.

"Without having the science to back you up, you are depriving people of the legitimate right to do business," Kurzman said.

A crisis in Bangor

Perhaps no city in the nation has been slammed more by synthetic drugs than Bangor, Maine, which bills itself as "one of the safest communities" in America.

In May, bath salts generated 33 police calls in this low-crime city of 32,000. By September, two months after Maine banned several synthetics, that number was up to 111. Bath salts were producing more calls than all other drugs combined, according to Bangor Police Chief Ron Gastia.

Users were stabbing their walls and clawing at their own skin. One robbed a convenience store while high on the drug. Another crashed his car. One bath salt user died in the hospital after he tried fleeing police in his truck and crashed.

Now, Gastia is pressing Maine's congressional delegation to make it easier for the DEA to quickly add new chemicals to its list of controlled substances. He said quick federal action will make it easier for state lawmakers to outlaw future generations of synthetics. Right now, he said, that process can take three to five years.

"The public is in jeopardy. Our officers are in jeopardy," Gastia said. "They [drugmakers] have these chemicals ready, just waiting for the next batch to become illegal. We cannot sit and wait for this to happen to us again."

Other members of Congress, including Minnesota Sen. Amy Klobuchar, are also working to make it easier to prosecute drug makers and sellers.

Ultimately, however, drug experts believe the war on synthetic drugs will require a multi-pronged effort that also stresses education, prevention and public awareness. R. Gil Kerlikowske, director of the White House's Office of National Drug Control Policy, said it's important to convince users that it's not worth gambling on these dangerously unpredictable drugs.

"You can't arrest your way out of this problem. And you can't legislate your way out of this," Kerlikowske said.