Biden RAVE Act Legislation From 2003 Continues to Impede Risk Reduction Efforts

While the global pandemic has forced the cancellation and postponement of many events throughout the world, the pent up desire to party may increase the need for risk reduction measures once festivals finally open their gates. Some event producers already offer services like drug checking to detect the presence of potentially deadly adulterants in substances such as MDMA and cocaine. Others decline to offer these services due to fears that they may be prosecuted under federal drug laws.

To complicate matters, the man who first introduced legislation that discouraged drug checking in the U.S. is now the presumptive Democratic party candidate for president of the United States.

In 2002, then Senator Joe Biden introduced the Reducing Americans’ Vulnerability to Ecstasy Act, or the RAVE Act. The original RAVE Act did not receive sufficient support from lawmakers, but a substantially similar law, the Illicit Drug Anti-Proliferation Act, still colloquially referred to as the RAVE Act and also sponsored by Biden, was passed as an attachment to the AMBER Alert Bill in 2003.

“If I were governor of my state or the mayor of my town, I would be passing new ordinances relating to stiff criminal penalties for anyone who holds a rave, the promoter, the guy who owns the building. I would put the son of a gun in jail. I would change the law,” said Biden during a 2001 Senate hearing. “There’s no doubt about where these raves are, in the middle of the desert. Arrest the promoter. Find a rationale unrelated to drugs.”

Based on earlier “crack house” laws, this new legislation expanded the Controlled Substances Act to prohibit “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.” This language has been criticized as overly broad and has discouraged some event organizers from providing risk reduction services.

“Promoters regularly claim that allowing harm reduction or even free water might open them to a RAVE Act prosecution,” says Mitchell Gomez, Executive Director of DanceSafe, a nonprofit that provides these services, including drug checking, at raves and festivals.

“Drug checking is the most important strategy to keep people safe at these festivals,” according to Columbia University psychology professor Carl Hart, who compares discouraging drug checking to “taking away your seatbelt.” Hart says drug policy that supports prohibition “puts our health at risk because we don’t know about the quality control.”

At Boom Festival in Portugal, where drugs are decriminalized, the Kosmicare project openly provides risk reduction services, including drug checking. According to a study conducted with Kosmicare, “When the test results were ‘unexpected’ […] 94.3% of the service users reported that they would not take the drug.” The study authors believe their results support the premise “that providing drug checking services in large-scale festivals helps users to better manage their drug use and deal with drug adulteration.”

The Illicit Drug Anti-Proliferation Act was used to prosecute an event producer in one high-profile 2010 case against festival promoter Jimmy Tebeau. According to the Riverfront Times, Tebeau owned the land in Missouri where the event, called Schwagstock, took place. He was also lead singer of Schwag, the festival’s headlining act. In addition to raiding Tebeau’s property, federal prosecutors also used asset-forfeiture proceedings to seize his land and freeze his bank accounts.

“We viewed it as somebody who was using a festival site to promote illegal drug sales and profit off of that,” prosecutor Richard Callahan, a U.S. Attorney for the Eastern District of Missouri, told the Riverfront Times. “We thought there was a difference between a music festival with incidental drug use and a drug festival with incidental music. We believe in this case it was the latter rather than the former.”

Drug policy reform advocates say the Tebeau case is a rare example of an actual prosecution using the RAVE Act, yet fear of prosecution remains a barrier to risk reduction implementation.

“It’s less that it’s been used as a tool of enforcement,” according to Stefanie Jones, founder and director of the Drug Policy Alliance’s Safer Partying work, “and more as this looming scare tactic.” She also says that event producers are concerned about liquor licenses, insurance, and state laws, as additional reasons for not offering risk reduction services.

In a June 2014 Reddit AMA, Electric Daisy Carnival CEO Pasquale Rotella was asked why he won’t allow organizations like DanceSafe to work his events. He responded by writing, “Unfortunately some people view partnering with DanceSafe as endorsing drug use rather than keeping people safe.” According to Rotella, “When the DEA started going after innocent event producers under the Crack House Law, having DanceSafe at an event was one of the things they looked at to justify putting them in jail for 20 years.”

Critics have attempted to change the broad language of the federal legislation. In August 2014, mother-turned-activist Dede Goldsmith launched a campaign to Amend the RAVE Act (ATRA). Goldsmith proposed that lawmakers add language to the legislation “to make it clear that event organizers and venue owners can implement safety measures to reduce the risk of medical emergencies, including those associated with drug use, without fear of prosecution by federal authorities.” Goldsmith began advocating for risk reduction measures after her daughter Shelley died of heat stroke at a 2013 electronic dance music (EDM) concert in Washington, D.C. where she took MDMA.

Goldsmith says she was spurred to action after discovering that the circumstances contributing to her daughter’s death included “dancing energetically for hours without a break at a club in DC that was overheated, overcrowded, with no easy access to water or cool-down spaces or trained medical personnel after she had taken MDMA.” Goldsmith says she believes that “venue owners and EDM promoters were effectively creating public safety nightmares for hundreds of thousands of young patrons due to their misinterpretation of a federal law, the Illicit Drug Anti-Proliferation Act, aka the RAVE Act.”

In an August 2018 letter, Sean Mitchell, representing the Congressional Affairs Section of the DEA, replied to inquiries from the ATRA campaign. Mitchell wrote that the DEA “shares Ms. Goldsmith’s concern that venue owners should not be discouraged from providing appropriate safety measures at entertainment venues. Our review of the Illicit Drug Anti-Proliferation Act […] did not identify any provision of the Act that would discourage law-abiding venue owners from instituting safety measures for its patrons.”

No changes have been made to the legislation. But Gomez asserts that this letter shows federal agencies are not eager to prosecute event producers who offer drug checking at their festivals. “The DOJ has made it very clear that they’re not interested in targeting harm reduction,” says Gomez.

Jones, of the Drug Policy Alliance, argues that this response “doesn’t give a lot of protection” for festival organizers.

Almost 20 years after introduction of the initial legislation, Gomez believes that “the RAVE Act should be repealed, not because of any actual risk of prosecution, but because it’s a badly written law.”

In the meantime, DanceSafe continues to provide drug checking services to dozens of festivals and events per year. Gomez says this number has been increasing every year until the pandemic, and he expects to see a big uptick in the need for these services when participants can gather again. “I’m guessing we’re going to see an influx into the scene unlike anything in history.”

Biden’s positions on drug policies have changed over time, but the Biden campaign has not replied to several requests for comment on whether he still stands by the Illicit Drug Anti-Proliferation Act or supports revisions to the legislation.