The DEA’s Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act under RFRA: Door to Religious Freedom or Fifth Amendment Trap for the Unwary?

Summary of the Article: The Drug Enforcement Administration has adopted a procedure to consider claims of exemption from the proscriptions of the Controlled Substance Act for churches that use psychedelic sacraments, and wish to continue doing so without fear of criminal prosecution. The article begins with an introduction to the seminal Supreme Court case that resulted in the DEA’s issuance of the Guidance, provides a brief account of the historical origins of the Fifth Amendment, proceeds to a discussion of government regulatory regimes that have required compelled self-disclosure of incriminating facts, and summarizes the holdings of the Supreme Court decisions that overturned these regulatory regimes as violative of the Fifth Amendment. With this background established, the article identifies a variety of Fifth Amendment defects in the Guidance, and suggests how these defects could be remedied by regulatory changes that would assure applicants for exemption that disclosures necessary for the DEA to fairly evaluate requests for exemptions would not be used against them to instigate investigations or prosecution.

Introduction to RFRA

It’s been twelve years since the Supreme Court delivered its unanimous decision in Gonzales v. O Centro Espírita Beneficente União do Vegetal,[1](“The UDV decision”), authored by Chief Justice Roberts, holding that the Religious Freedom Restoration Act (“RFRA”) “prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government ‘demonstrates that application of the burden to the person’ represents the least restrictive means of advancing a compelling interest.”[2] The specific legal effect of the UDV Decision was both revolutionary and narrowly limited. Revolutionary, because it considerably softened the draconian holding in Employment Division, Dept. Of Human Resources of Oregon v. Smith,[3] that eliminated all First-Amendment based rationales for exemptions from general law that would allow use of psychedelic substances in religious services, by directing the federal courts to strictly scrutinize the constitutionality of laws that substantially burden religion practice. Narrowly limited, because it granted a religious exemption for psychedelic use to only one Brazilian religious sect — the UDV, and applied the exemption to only one controlled substance — dimethyltryptamine (“DMT”). Further, it provided protection against only Federal law enforcement interference.

The UDV decision was made possible only because the Roberts Court embraced the power Congress granted the federal courts in RFRA, which Congress enacted to remedy the injustice that was made law in the Smith case. As Justice Roberts stated, “In Smith we rejected the interpretation of the Free Exercise Clause announced in earlier cases, [and] Congress responded by enacting the Religious Freedom Restoration Act.”[4] Applying the strict-scrutiny standard of review required by RFRA, the Court found itself compelled to reject the DEA’s two arguments: (1) that the CSA was a “closed system” that admitted of no exemptions, and (2) that the nation’s obligations under the 1971 UN Convention on Psychotropic Substances further precluded granting any exemptions to the CSA’s proscriptions.[5]

In the wake of the UDV Decision, these two arguments should have vanished forever, but hope springs eternal with the Department of Justice, that recently attempted to breathe new life into the DEA’s defunct “closed regulatory system” argument, and had to be reminded by the Ninth Circuit that, “[l]ike it or not, when religious objectors raise RFRA as a defense to prosecution under the CSA, RFRA requires courts to ‘strike sensible balances’ on a case-by-case basis, in light of ‘the particular practice at issue.”[6] The Ninth Circuit’s rejection of the USDOJ’s efforts to stall the growth of precedent show that it has imbibed the teachings of O Centro, and real progress has been made.

The DEA Promulgates Guidance for RFRA-Based Exemption Requests from the CSA

Despite the heel-dragging attitude of the DEA and the Department of Justice, the principles enunciated in the UDV Decision are now firmly embodied in RFRA law, and the courts have directed the DEA to review RFRA applications from religious practitioners seeking exemptions from the effect of the CSA. Thus, in January 2009, the DEA issued a document entitled “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act” (the “Guidance”).The Guidance lays out the requirements for filing a Petition for Religious Exemption from the CSA (a “PRE”). Notably, the Guidance did not go through a public comment procedure, and was adopted as an act of administrative fiat.

According to the Guidance, a PRE must disclose a church’s “membership policies and leadership,” which controlled substances it “wishes to use,” where the controlled substances will be used, and the amounts, conditions, and locations of its “anticipated” manufacture, distribution … and possession of controlled substances.[7] The procedure provides no set time period for the DEA to process a PRE, and requires the church to refrain from any use of psychedelic sacraments while the PRE is pending.[8]

How This Article Came to Be, and What’s In It

The Guidance tells exemption seekers to write a detailed confession of conduct the DEA considers to be criminal, betting that the DEA will conclude that the behavior is worthy of an exemption from legal sanction. Intuition might lead one to believe that this is not a very good bet, and most lawyers with experience in criminal law would probably sense serious problems with the Guidance procedure; however, a thorough analysis of the constitutional hazards inherent in the process has been lacking, and in the absence of this analysis, churches and their lawyers have been operating in the dark, exposed to unassessed risks. After discussing the matter with church leaders and attorneys, the author concluded there was a need to probe those risks on behalf of churches attracted by the potential of obtaining legal protection from the threat of prosecution, but wary of the risks of drawing attention to themselves by filing a PRE.

Delving into the topic, the author discovered a similarity between the Guidance and several other regulatory schemes that the US Government has adopted over the years when faced with the job of regulating citizen behavior deemed immoral, dangerous, or ideologically undesirable, including gambling, narcotics trafficking, and membership in the Communist party. As we will see, each of these groups has been the subject of Government efforts to compel or induce citizens to relinquish their Fifth Amendment Rights to be free of compelled self-incrimination by requiring disclosure of criminal conduct.

The article begins with a review of the history and purpose of the Fifth Amendment privilege against self-incrimination. It then briefly reviews the histories of the Harrison Narcotics Act of 1914, the 18th Amendment and the Volstead Act (that jointly prohibited sales of alcohol), and the Marihuana Tax Act of 1937, all of which utilized registration regimes to require bootleggers, dealers in narcotics, and cannabis buyers and sellers to incriminate themselves. The article then discusses the seminal litigation that resulted in Dr. Timothy Leary’s successful bid to overturn the Marihuana Tax Act as an unconstitutional infringement of the Fifth Amendment, explaining how this victory was made possible by two important Supreme Court decisions — the first holding that the American Communist Party did not have to disclose its membership to a Government board of inquiry, and the second holding that bookmakers did not have to register with the IRS, notwithstanding a Congressional enactment that required them to do so.

The article then examines the Guidance in light of these precedents, and concludes that (1) the Guidance infringes the Fifth Amendment right to be free of self-incrimination by requiring disclosure of facts that could lead to investigation and prosecution for violation of the Controlled Substance Act, and (2) these constitutional defects could be remedied through rule changes by the DEA.

A Short History of the Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment is the primary source of constitutional protection against abuses[9] of the criminal justice system by the federal government:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.”

Why do we have this privilege to refuse to testify against ourselves when we stand in criminal jeopardy? The privilege originated in England, where the Star Chamber pursued political prosecutions, and ecclesiastical courts ferreted out blasphemers, by administering the oath ex officio, that conducted ideological interrogations under oath, under threat of imprisonment, banishment, and torture.[10] General revulsion with this practice crested after John Lillburne, who had been flogged for refusing to take the oath in the Star Chamber was granted compensation for his injuries. In 1641, the Star Chamber was abolished and administration of the oath ex officiowas prohibited.

In Brown v. Walker,[11] the Supreme Court stated:

“So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.”

This nobly-phrased exposition is stirring and evocative; nevertheless, it elides an important historical truth — that common sense and self-preservation were the more likely reasons why the Founding Fathers elevated the privilege against self-incrimination to the level of an impregnable constitutional principle. The American Revolution was a hazardous undertaking by men used to risk, who had reason to put in place a system of government that could not easily be turned into a vehicle for tyranny. As Ben Franklin said, and each one of the Founding Fathers well knew, they all had to “hang together, or hang separately.” Having been born in the crucible of defiance, it’s no surprise that the law of the land came to embody the Founders’ awareness of the importance of being able to have a private life, within which plans deemed seditious or unlawful by the governing authorities might yet be brought to fruition.

The primary champion of the Bill of Rights was John Hancock, “a well known smuggler of molasses, Dutch tea, tobacco, rum and wine among other products.”[12] In 1768, Hancock’s smuggling vessel, the Liberty, was seized by the British. He was convicted of smuggling, fined £9,000, and forced to forfeit the ship. Hancock, who signed the Declaration of Independence as the President of the Constitutional Congress, proposed the Bill of Rights and pressed for its adoption until it was passed by Congress on September 25, 1789.

Thus, protection of secrets from the prying eyes of government became a mainstay of American jurisprudence. The Fourth Amendment of the Bill of Rights protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” which in practice allows people to possess written plans for revolution, or substances deemed contraband. The Fifth Amendment guarantees that evidence hidden in the mind of an accused person cannot be wrenched from them by torture, threats, or legal compulsion.[13] Finally, the First Amendment protects not only the right to speak, but also the right to refuse to repeat government slogans like the pledge of allegiance, or to engage in compelled religious speech like school prayer.[14]

A Brief Review of Federal Drug Registration Schemes Enacted Under the Guise of Taxation

Federal regulation of psychoactive drugs began with congressional enactment of the Harrison Narcotics Act of 1914. Before that date, cocaine and morphine were common treatments for pain and fatigue, available over the counter in patent medicines, and by prescription. These unregulated substances were widely abused, and federal lawmakers sought to protect the public. However, Congress was unsure of its authority to outlaw drugs by federal law, so it did not make narcotics illegal outright. Rather, the Harrison Act required importers, manufacturers and distributors of opium to register with the U.S. Department of the Treasury, keep records of each transaction, and pay a tax on the drugs.[15]

The DEA’s official history concedes that the Harrison Act was disguised as a tax law over the “anguished objections” of Daniel Roper, Commissioner of the Bureau of Internal Revenue (predecessor to the IRS), “who saw no reason why a tax bureau should … control the consumption of … narcotics,” in order to “pursue … a moral end in a way that might otherwise be unconstitutional.”[16] The constitutional dodge, that made narcotics possession criminal without proof of criminal intent, merely upon the basis of the failure to have the right paperwork, received approval from the Supreme Court in United States v. Doremus,[17] that pronounced, “If the legislation enacted has some reasonable relation to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed motives which induced it.”[18]

The nation’s early fervor to beat the drug habit was implemented through ham-handed enforcement of the Harrison Act — a tradition that continues to the present day, as mass incarceration has fed the maw of misery while multiplying the number of addicts and overdoses astronomically. The IRS narcotics enforcers closed addiction treatment centers and jailed physicians for prescribing “maintenance doses” to addicts.[19] As the DEA records in its official history, under “the Harrison Act, the Narcotic Division of the Internal Revenue Service closed down state and city narcotics clinics and sent drug violators to federal penitentiaries.”[20] This practice was not legally curtailed until the Supreme Court ruled that, since Congress has no authority to regulate the practice of medicine or to achieve moral ends, the Harrison Act could not criminalize a physician’s delivery of “moderate amounts of drugs for self-administration in order to relieve conditions incident to addiction.”[21]

The drive to sober up the nation picked up speed in 1919, when Nebraska became the thirty-sixth state to ratify the Eighteenth Amendment, prohibiting “the manufacture, sale or transportation of intoxicating liquors within…the United States.” Later that same year, Congress enacted the Volstead Act, that prohibited the manufacture and sale of alcoholic beverages.

The bootlegging industry thrived, however, and enforcement of Prohibition, like the Harrison Act, fell to the Bureau of Internal Revenue, resulting in the bloody gangland struggles made famous in numerous Hollywood films that glamorized both gangsters and the “G Men” who battled them.Moonshining in the hill country of the American south gave way to enormous illegal Canadian distilleries produced vast supplies of whiskey that made their way by rail, ship and truck to the U.S. Midwest.[22]But Prohibition was a short-lived shot in the arm for gangland profiteers — Congress repealed the 18th Amendment in December 1933. As the clandestine booze business dried up, many criminals who had mastered the arts of producing, smuggling, and dealing contraband turned their hands to the narcotics traffic, which remained illegal after Prohibition’s end.

Congress eventually took the burden of narcotics enforcement off the shoulders of the taxing authorities, tasking the Department of Justice with enforcement of the Harrison Act.[23] Thus, by the time Prohibition was repealed in 1933, the newly-established Federal Bureau of Narcotics was already on the hunt for new substances to prohibit, and organized crime was tooled up to expand their business into new fields of unlawful enterprise. The head of the recently-created Federal Bureau of Narcotics, Harry J. Anslinger, looking for new fields of repressive endeavor, turned his eye towards Cannabis Sativa. Anslinger built his propaganda campaign with racist appeals that claimed the “devil weed” was a form of chemical warfare against white virtue, an evidence-free contention that has still not been overcome.

As had been the case with morphine, however, the government did not make the weed illegal outright; rather, it enacted the Marihuana Tax Act of 1937 (the “MTA”). The DEA explains:

“The fear persisted that any federal drug law might be ruled unconstitutional. The Marihuana Tax Act of 1937 was therefore modeled on the Harrison Narcotics Act, as well as on a more recent act restricting gangsters from using machine-guns by requiring them to pay a transfer tax.”[24]

State legislatures, however, all enacted criminal laws prohibiting possession shortly after passage of the MTA, so the required federal registration became a confession of state law criminal conduct. A successful challenge to the MTA had to wait 35 years, until Dr. Timothy Leary was convicted under the act, and appealed his conviction to the Supreme Court. But first, two important cases involving bookmakers and communists had to be decided.

Marchetti: Bookmakers Successfully Attack the Wagering Act

In 1967, Prof. Robert B. McKay published an influential article on the Fifth Amendment privilege against self-incrimination in the Supreme Court Review. Professor McKay’s article, published just before the Supreme Court’s seminal 1968 decision in United States v. Marchetti, [25]articulated key policies that underpin the privilege against self-incrimination:[26]

“The privilege historically goes to the roots of democratic and religious principle. It prevents the debasement of the citizen which would result from compelling him to “accuse” himself before the power of the state. The roots of the privilege are deeper than the rack and the screw used to extort confessions. They go to the nature of a free man and his relationship to the state.”[27]

The Marchetti defendant was a bookie who had been convicted of failing to pay the “annual occupational tax” that all persons engaged in the bookmaking business were required to pay under the Wagering Act, and for willfully failing to register as a bookmaker “before engaging in the business of accepting wagers.”[28] In Marchetti and two related cases, the Supreme Court dismissed prosecutions for violations of the Wagering Act on Fifth Amendment grounds. Although the asserted purpose of the Wagering Act was to raise revenue, the law provided that registration records could be passed from taxing authorities to criminal prosecutors, which in fact occurred, leading to some convictions for illegal gambling where the sole evidence against the defendant was the stamp that bookmakerswere compelled to buy and display in their bookmaking offices.[29]

The Court first distinguished United States v. Sullivan,[30] where the Court overruled a bootlegger’s Fifth Amendment objection to filing a tax return on the grounds that it would force him to incriminate himself by disclosing ill-gotten gains on the grounds that all citizens had to answer the questions on the tax form, so the system couldn’t be said to single him out for criminal scrutiny. That was an easy decision, requiring no overturning of settled law. But harder work was ahead. Urging the Court to continue to pursue a principled approach to constitutional rights to its logical conclusion, Prof. McKay cogently explained why two Supreme Court decisions, Lewis v. United States,[31] and United States v. Kahriger,[32] had to be overturned based on the reasoning set forth in the Court’s 1965 decision in Albertson v. Subversive Activities Control Board.[33]

The Albertson opinion held that the Communist Party of the United States could not be required to disclose a list of its members over the organization’s Fifth Amendment objection, asserted on behalf of its members.[34] The Court had distinguished Sullivan on the grounds that the bootlegger who didn’t want to answer questions on the income tax form, was merely being asked “neutral” questions that were “directed to the public at large;” but the Subversive Activities Control Board (“SACB”) had focused on the Communist Party as “a highly selective group inherently suspect of criminal activities … where responses to any of the form’s questions … might involve … admission of a crucial element of a crime.”[35] As a result, the SACB’s demand to learn “the organization of which the registrant is a member, his aliases, place and date of birth, a list of offices held in the organization and duties thereof — might be used as evidence in or at least supply investigatory leads to a criminal prosecution.”[36] Thus, the Court sustained the Communist Party’s refusal to disclose its membership, putting an end to the SACB’s entire reason for existence, and saving all of the Party’s members from criminal prosecution.[37]

Prof. McKay advised the Court to apply what was good for the Communists to the bookmakers, noting that the doctrine espoused in Lewis and Kahriger was inconsistent with the principles set forth in the Albertson decision: “Kahriger and Lewis appear to permit the requirement of incrimination by payment of taxes and registration for the conduct of criminal activities, a result probably inconsistent with Albertson, which forbade registration that could be used to incriminate.”[38]The Court resolved these inconsistencies in Marchetti by following Prof. McKay’s suggestion and overruling Kahriger, in language that made it clear a new day had dawned in Fifth Amendment jurisprudence:

“Prospective registrants [under the Wagering Act] can reasonably expect that registration and payment of the occupational tax will significantly enhance the likelihood of their prosecution for future acts, and that it will readily provide evidence which will facilitate their convictions. Indeed, they can reasonably fear that registration, and acquisition of a wagering tax stamp, may serve as decisive evidence that they have in fact subsequently violated state gambling prohibitions.”[39]

Dr. Leary Overturns the Marihuana Tax Act

A few days after the Supreme Court delivered the Albertson opinion, on December 22, 1965, Dr. Timothy Leary was arrested for possession of a small amount of cannabis at the Mexican border. Prosecuted in Laredo, Texas, he was convicted of violation of the Marihuana Tax Act (“MTA”) and two other controlled substance charges, and sentenced to thirty years in prison.[40] Three years later, on December 11, 1968, Dr. Leary’s lawyers stood in front of the Supreme Court to argue that, under Marchetti, decided earlier that same year on January 29, 1968, the MTA could not pass Fifth Amendment scrutiny. The MTA required dealers in cannabis to register with the IRS and pay a yearly fee, and required anyone wishing to acquire cannabis to buy it using a government form that stated their name and address, and the quantity of cannabis they had bought.[41] Seeking to overturn the MTA conviction, Leary argued that punishing him for not complying with the MTA’s self-disclosure requirements would legitimate a form of compelled self-incrimination.

Justice Harlan, who had written the Marchetti opinion, agreed with Dr. Leary’s position:

“[Dr. Leary] asserts the right not to be criminally liable for one’s previous failure to obey a statute which required an incriminatory act. *** We conclude that petitioner’s invocation of the privilege was proper and that it should have provided a full defense to the third count of the indictment. Accordingly, we reverse ….”[42]

The analysis in Leary was straightforward. Like the Wagering Act, the Court held that the MTA compelled Dr. Leary to “expose himself to a real and appreciable risk of self-incrimination [requiring him] to identify himself as a transferee of marijuana … who had not registered [and further directed] that this information be conveyed by the Internal Revenue Service to state and local law enforcement….”[43] Fundamental to Dr. Leary’s success before the Supreme Court was his “proper invocation” of the privilege — an invocation that nullified what would otherwise have been a 30 year stretch in prison.

To be clear, the result in Leary did not mean that the federal or state government cannot tax illegal activity — counterintuitive though it may seem, taxing illegal conduct was not ruled unconstitutional; thus, several states have enacted laws that impose taxes on criminal activity and the proceeds of crime.[44] What Marchetti and Leary teach us is simply that, whenever the government directs the members of a highly selective group inherently suspect of criminal activities to disclose their identities and the nature of the conduct that brings them into suspicion, any member of that group, or the group itself on behalf of its members, can refuse to make those disclosures by invoking the Fifth Amendment, and thus avoid compelled self-incrimination.

Scrutinizing the Guidance for Fifth Amendment Hazards

Now that we have reviewed how Albertson, Marchetti and Leary empowered the targets of registration regimes to assert valid objections under the Fifth Amendment, let’s analyze the Guidance to determine whether it is objectionable. Remember, as we go through these objections, that to be valid, they must be framed based on the right of a psychedelic church to assert the Fifth Amendment on behalf of its members, as the Communist Party did on behalf of its members, because as a “collective entity,” a church may not assert the privilege against self-incrimination. (See Note 34.) For the sake of clarity, we phrase our inquiry in question and answer form.

The central directive of the Guidance is set forth in paragraph 2, entitled Contents of Petition, that requires the following disclosures:[45]

“(1) the nature of the religion (e.g., its history, belief system, structure, practice, membership policies, rituals, holidays, organization, leadership, etc.); (2) each specific religious practice that involves the manufacture, distribution, dispensing, importation, exportation, use or possession of a controlled substance; (3) the specific controlled substance that the party wishes to use; and (4) the amounts, conditions, and locations of its anticipated manufacture, distribution, dispensing, importation, exportation, use or possession.”

Paragraph 3 requires a PRE to be signed by “the petitioner” under penalty of perjury. Paragraph 4 states a PRE that does not conform to the Guidance will not be accepted for filing. Paragraph 5 provides that the DEA may demand “additional documents or written statements of facts … as the DEA deems necessary,” to which the applicant must respond within 60 days, or “the petition will be considered to be withdrawn.” Also of relevance is paragraph 7, that forbids applicants engaging in “any activity prohibited under the Controlled Substances Act or its regulations unless the petition has been granted and the petitioner has applied for and received a DEA Certificate of Registration.”[46] Finally, paragraph 9 provides that nothing in the Guidance “shall be construed as authorizing or permitting any party to take any action” that is at variance with State or Federal laws, and that compliance with the Guidance does not imply “compliance with other Federal or State laws unless expressly provided in such other laws.”

First, can the Fifth Amendment can be invoked in the context of an administrative proceeding, such as the exemption procedure described by the Guidance?

Answer: Yes. To quote from Professor McKay’s article: “[N]o person may be compelled to answer incriminating questions, whether before a court, an administrative agency, or a legislative investigating committee.”[47]

Second, is invocation of the Fifth Amendment necessary to secure protection from self-incrimination?

Answer: Yes. The Fifth Amendment is not “self-executing,” and must be invoked; otherwise, its protections will be waived.[48]

Third, let us assume that the DEA contends that, since no church or individual is “required” to submit a PRE to the DEA, the disclosures required by the Guidance are “voluntary,” and therefore unobjectionable. Is this argument correct?

Answer: No. Fifth Amendment protections are not abrogated by registration schemes that purport to be voluntary, when the only “choice” to be made is to refrain from engaging in the criminally proscribed activity that the registration scheme seeks to uncover by compelled disclosures. In Marchetti, the high Court overruled the holding in Lewis that “even if the required disclosures might prove incriminating, the gambler need not register or pay the occupational tax if only he elects to cease, or never to begin, gambling.” The Court explained its position in the following language:

“[If] an inference of antecedent choice were alone enough to abrogate the privilege’s protection, it would … ultimately license widespread erosion of the privilege through ‘ingeniously drawn legislation.’” … We cannot agree that the constitutional privilege is meaningfully waived merely because those ‘inherently suspect of criminal activities’ have been commanded either to cease wagering or to provide information incriminating to themselves, and have ultimately elected to do neither.”[49]

Accordingly, the Supreme Court has refuted the argument that the Fifth Amendment provides no protection because members of psychedelic churches could simply “elect to cease, or never begin” consuming controlled substances as their communion sacrament. Further, the fallacious nature of the “choice” argument is more evident when scrutinized in the context of the Guidance, because while no one has a constitutional “right to gamble,”[50] they do have a constitutional right to free exercise of religion under the First Amendment, and that includes the right to consume a psychedelic sacrament.[51] The Supreme Court has repeatedly held that one should not be forced to bargain away one right in order to exercise the Fifth Amendment right to refuse to make compelled disclosure of private matters.

In the most often-cited example, the Court held that the Fifth Amendment was violated when the New York Bar Association disbarred a lawyer for invoking the Fifth Amendment when served with a subpoena from the Bar demanding production of records that would disclose how he handled funds in contingent-fee cases.[52] The Court reversed the order of disbarment, holding that the Fifth Amendment forbids “the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly,’” and that “threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege.”[53] In a more recent case, the Court held a New York law unconstitutional that required the cancellation of municipal contracts and disqualification from future municipal contracting for five years, whenever the contractors, in this case two architects, refused to provide testimony in a state inquiry.[54] Similarly, church members should not be required to forego claiming their constitutional right to partake in psychedelic communion, free of the risk of prosecution, by conditioning that right on exposing church leaders and other members to the risk of prosecution.

Fourth, let us consider another argument the government has made in defense of past registration regimes — that the Guidance doesn’t ask for disclosure of past acts, for which someone could be prosecuted, but only “future acts,” hypothetical in nature. Combined with the requirement of paragraph 7 of the Guidance, that requires abstention from the use of controlled substances until the PRE is approved, the following argument could be made: “Since the DEA is not asking for any information about controlled substances the applicant’s members have previously possessed, manufactured, or distributed, and since the applicant’s members are not possessing, manufacturing or distributing any controlled substances while the PRE is pending, the required disclosures will not lead to criminal prosecution.” Is this argument correct?

Answer: No. Marchetti held that compelled disclosure of a future intent to engage in gambling “increases the likelihood that any past or present gambling offenses will be discovered and successfully prosecuted” and “obliges even a prospective gambler to accuse himself of conspiracy to violate” state and federal gambling laws.[55] Overruling contrary precedents, the Court held that “the central standard for the privilege’s application [is] whether the claimant is confronted by substantial … hazards of incrimination,” a principle that “does not permit the rigid chronological distinction adopted in Kahriger and Lewis.”[56] By requiring disclosures of the identities of church leaders, the controlled substances that the church “wishes” to manufacture, possess and distribute, and the times and places where these actions will be taken, the Guidance exposes the identified members of churches that submit a PRE to the risk that past offenses will be investigated, discovered, and prosecuted, and compels confession of an intent to engage in a conspiracy to violate the CSA. Accordingly, the prospective phrasing of the disclosures required by the Guidance does not insulate it from Fifth Amendment objection.

Fifth,does requirement that applicant churches disclose the “organization”and “leadership” of the church violate the Fifth Amendment?

Answer: Yes. The disclosure of the identity of any person in conjunction with the disclosure of the intent to engage in conduct that would be criminal, such as possession, manufacture or distribution of a controlled substance, is precisely the type of disclosure that subjects one to “substantial hazards of incrimination.” Although leaders and members of the Daime disclosed their identities to the Oregon District Court in their litigation with the DEA when they submitted declarations in support of their claims, the risks of disclosure were mitigated by the pendency of the litigation itself. In the UDV case, the church sought and obtained a Preliminary Injunction that precluded the DEA from engaging in prosecutorial activities during the pendency of the case. In future litigation, thought should be given to how to provide the courts with evidence necessary to adjudicate the claim of exemption without waiving the Fifth Amendment rights of leaders and members. Attorneys for prospective psychedelic churches should remember that, in Albertson, the entire battle was over whether the Communist Party could be required to disclose its membership, and as we noted in that discussion, the Party successfully asserted the privilege on behalf of its members.[57]

Sixth, does the requirement to disclose the “membership policies” of the church violate the Fifth Amendment?

Answer: No. Membership (the people in an organization) and membership policies (the policies that members have to follow) are not the same, and the latter does not carry with it the same risk of incrimination that actual names of people do. The membership policies of the UDV and the Santo Daime were a focus of inquiry in the court proceedings that resulted in their receipt of a RFRA exemption to use Ayahuasca as a sacrament. For example, in the case of the Daime, the Oregon District Court Judge considered whether children had been given psychedelic doses of Ayahuasca, whether the church members consumed controlled substances other than Ayahuasca, whether prospective church members were screened for mental and physical illness, and whether the ceremonies had deleterious effects on the health of members.[58]

Seventh, does the requirement to disclose the controlled substance a church intends to use as a sacrament violate the Fifth Amendment?

Answer: No. Standing alone, the requirement to disclose which controlled substance a church intends to use as a sacrament would likely not violate the Fifth Amendment, and would be seen as a necessary disclosure to allow the regulatory system to function. In the opinion of this author, disclosure of the sacramental controlled substance, without disclosing the identity of the persons who will possess, manufacture or distribute it, or the locations where the controlled substance is kept, would not appear to expose anyone to a “substantial hazard of incrimination.”

Eighth, does the requirement to disclose where the sacramental controlled substance will be manufactured, possessed, and distributed violate the Fifth Amendment?

Answer: Yes. In Marchetti, disclosure of the addresses where gambling would be conducted was required by the Wagering Act, as was the duty to post the stamp issued by the IRS on the premises, and these were two elements that the Court held exposed the registrants to the risk of prosecution. Likewise, in Leary, the MTA requirement to disclose the addresses of sellers and buyers of cannabis were found to give rise to well-founded fears of prosecution. In each case, of course, the statutes specifically provided that the registrant’s identity and address would be provided to prosecutors and law enforcement upon request and payment of a fee for copying the records. In the Guidance, there is no such provision; however, neither does the Guidance prohibit the transfer of a PRE, or the material contained therein, to the enforcement arm of the DEA. Further, paragraph 9 specifically warns applicants that submission of a PRE provides no protections from any provisions of state or federal law. Because the DEA is charged with enforcement of the CSA, in the absence of affirmative protections to prevent the transfer of the information to the DEA’s own enforcement division or state and municipal law enforcement, the risk of prosecution is present, and cannot be removed by an unwarranted assumption that the DEA would not open an investigation while or after evaluating the PRE, or transfer the information to prosecutors and police.

Ninth, is paragraph 4, providing that any PRE that fails to meet the requirements of the Guidance will be rejected, objectionable under the Fifth Amendment?

Answer: The answer is unclear, and highlights the risks of proceeding with a PRE submission without first seeking to remedy the objectionable features of the Guidance. As previously discussed, church members should not be penalized for asserting their rights to protect their Fifth Amendment rights by losing their First Amendment right to free exercise of religion.[59] However, some cases hold that an applicant for a license or privilege from the government, such as an officer’s commission from the armed forces, or a radio license from the FCC, may be required to answer questions that are relevant to the issuance of the commission or license, or suffer the rejection of their claim, notwithstanding their assertion of a Fifth Amendment objection.[60] In the two cases cited in the footnote, the question was whether the prospective officer or radio station licensee had ever been a member of the Communist Party, a matter that went to the fitness of these individuals to receive the commission or license, and did not implicate the loss of any constitutional right such as the right to free exercise of religion. Thus, if a PRE is submitted without any invocation of the Fifth Amendment or other complaint regarding the unconstitutionality of the Guidance requirements, these precedents would likely result in a reviewing court affirming the DEA’s rejection of the PRE for noncompliance with the Guidance.

Tenth, what are the Fifth Amendment implications of a DEA demand for additional information that the agency “deems necessary to determine whether the petition will be granted,” under paragraph 5?

Answer: Although this question cannot be answered “yes” or “no,” we can identify several important Fifth Amendment concerns.

First, would the Fifth Amendment objection be waived, based on the mere filing of a PRE?[61] Absent a Fifth Amendment objection presented in the original PRE, waiver might be inferred. In Leary, the Supreme Court determined that Dr. Leary had not waived his right to object to the MTA’s Fifth Amendment defects by testifying “at trial that he had indeed failed to comply with the statute [because the testimony] was perfectly consistent with the claim that the omission was excused by the privilege.”[62] However, Justice Harlan’s answer was guarded when the government argued that Dr. Leary had also testified “that his noncompliance was motivated, at least in part, by his conviction that the Act imposed an illegal tax upon religion or upon the ‘pursuit of knowledge.’”[63] Justice Harlan deflected this argument on the grounds that “other parts of [his] testimony clearly indicate that he also was influenced by an apprehension that by trying to pay the tax he might incriminate himself [and thus the Court could not say] that petitioner’s testimony, taken as a whole, amounted to a waiver of the privilege.”[64]

Second, assuming the objection was not waived by improvident disclosures in the PRE, could objection to the demand for additional information provide the basis for an appeal of the DEA’s decision to treat the application as “withdrawn”? As noted above, the Orloff and Blumenthal cases cited in note 60 concede that an administrative agency may properly refuse to grant a license to an applicant who refuses to provide requested information based on the Fifth Amendment. However, no court has yet considered the precise point that would be presented if the DEA made an unreasonable demand for unnecessary information that would tend to expose church members to the risk of prosecution, and rejected a PRE when the applicant failed to provide it.

Third, again assuming no prior waiver, could an applicant properly assert the Fifth Amendment to refuse a response to an administrative subpoena demanding information that a PRE applicant had refused to provide in response to a paragraph 5 demand? The objection would certainly be proper, because Fifth Amendment privilege “can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory [to avoid making] disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”[65] This answer is given with the substantial caveat that, since submitting a PRE is unquestionably a foray into the lion’s mouth without promises of protection, should the DEA choose to exercise its subpoena powers, in the event that the issues are joined before a District Court, everything the applicant voluntarily disclosed in the PRE would be aggressively used against the applicant in an effort to find a waiver.

Eleventh, does the requirement that a PRE be filed under penalty of perjury present a risk of self-incrimination?

Answer: Yes. Only a human being can possess the personal knowledge necessary to qualify as a witness or sign a statement under penalty of perjury.[66] A person commits perjury “if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.”[67] Making a false statement in a PRE would violate 18 USC § 1001, that prohibits a person from making “any materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive… branch of the Government.” The maximum prison sentence for a violation of Section 1001 is five years. As we have discussed in various contexts, the sine qua non of self-incrimination is the submission of a document to the government that identifies a person as complicit in the commission of criminal acts under state or federal law. Because the Guidance requires that a properly-prepared PRE be a statement under penalty of perjury that identifies the controlled substances the church uses, and the places and times where the substances are kept and distributed, the person who signs the PRE will have to identify him or herself as involved in the manufacturing and distribution of controlled substances.

Further, the person who signs the application will be placed at risk of being charged with perjury if other church members violate the requirement of paragraph 7 of the Guidance that prohibits the applicant church from engaging “any activity prohibited under the Controlled Substances Act or its regulations unless the petition has been granted and the petitioner has applied for and received a DEA Certificate of Registration.” Even if the PRE does not contain an express promise to comply with paragraph 7, such a promise could be inferred from the submission of the PRE, and the necessary representation by the applicant that the PRE complies with the Guidance. To avoid subjecting the signer of a PRE to the risk of a perjury charge, all members of the applicant church would have to refrain from using a controlled substance as its sacrament for an indefinite period of time, while the DEA reached its decision. The final irony of the Guidance procedure is that, by refraining from using a controlled substance as a sacrament in its religious services, an applicant church undercuts the evidence most fundamental to proving its claim under RFRA — that psychedelic communion constitutes the essence of its religious path, and that threatening church members with criminal sanctions for partaking of their psychedelic sacrament substantially burdens their right to the free exercise of religion under the First Amendment.[68]

Twelfth, could the Fifth Amendment defects identified above be remedied by making appropriate changes to the Guidance to protect the privilege against self-incrimination?

Answer: Yes. In the author’s opinion, the Fifth Amendment defects described above would be cured if the DEA adopted enforceable administrative rules to guarantee that information in a PRE identifying the leadership or members of the church, and the location where controlled substances are manufactured, possessed or distributed, would (a) be used only by the officials specifically charged with evaluating RFEs, and (b) would not be provided to the enforcement division of the DEA, to any other law enforcement entity, government agency. or private contractor, and (c) that the information provided in a PRE would be inadmissible in any criminal prosecution against the church leaders and members identified in the PRE, and (d) that church leaders and members identified in the PRE would be immune from prosecution for any acts affirmatively disclosed in the PRE.[69] Finally, the proscription against use of the controlled substance as communion sacrament, that pits the self-interest of the person who signs the PRE against the free exercise rights of the applicant church and its members, must be eliminated.

Conclusion

Absent the immunity protections described above, submitting a PRE would expose church members to substantial risks of self-incrimination, and cautious attorneys will warn their clients of those risks before submitting a PRE on their behalf. In order to obtain the necessary protections, psychedelic churches would be wise to take a lesson from the Albertson plaintiffs, and act on behalf of their members to present Fifth Amendment and other appropriate constitutional objections to the DEA[70] with a request to initiate a rulemaking procedure with an opportunity for comment from the affected churches. If the DEA declines to revise the Guidance and enact rules that will protect the constitutional rights of churches that wish to use psychedelic controlled substances as religious sacraments without fear of prosecution, the churches could initiate litigation to secure a decree that, because the Guidance fails to respect the religious freedoms guaranteed by the First Amendment and RFRA, and forces church members to engage in an unconstitutional tradeoff of their right to be free of compelled self-incrimination in order to avail themselves of their right to free exercise of their chosen religious practices, the Guidance therefore infringes their constitutional rights, and lacks the force of law.

[1]Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 US 418, (2006).

[2]O Centro, 546 US at 423.

[3]Employment Division, Dept. Of Human Resources of Oregon v. Smith, 494 US 872 (1990).As Justice Blackmun, Brennan and Marshall, made clear in their dissenting opinion, the Smith case itself was a classic piece of judicial legerdemain by the late Justice Scalia that “effectuate[d] a wholesale overturning of settled law concerning the Religion Clauses of our Constitution.” Smith, 494 US at 909. RFRA’s enactment revitalized a number of important Free Exercise cases, as the UDV opinion noted: “RFRA expressly adopted the compelling interest test “as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).””

[4]O Centro, 546 US at 424 (ellipses).

[5]First, the Court found that the Government’s interest in maintaining a “closed regulatory system” was not a “compelling interest” within the meaning of RFRA. Second, the Court held that the Government’s asserted interested in complying with the 1971 United Nations Convention on Psychotropic Substances, did not rise to the level of a compelling interest. “[I]invocation of such general interests, standing alone, is not enough.” O Centro, id. at 438.

[6]United States v. Christie, 825 F.3d 1048, 1060–1061 (2016), quoting O Centro, 546 U.S. at 435–36, 126 S.Ct. 1211 (emphasis added).

[7] The phrases “wishes to use,” and “anticipated” are set off in quotes because, as we will discuss later, by putting the use of controlled substances in the future tense, the DEA intends these phrases to have specific legal meaning.

[8]Only two applications for exemption have been granted — a fact of which the author is advised anecdotally, without review of any documentation to support the fact. The author has been advised that these exemptions were granted by the DEA to two branches of the Santo Daime Church, after its Oregon branch secured freedom from the risk of prosecution in CHLQ v. Mukasey, 615 F.Supp.2d 1210 (2006). For those with PACER access, the records of CHLQ v. Mukasey are a valuable trove of knowledge regarding the process of litigating a RFRA civil lawsuit to judgment.

[9]The Fifth Amendment also requires that felonies be charged by a grand jury, provides protection against “double jeopardy,” and establishes the right of due process in federal criminal proceedings.

[10]The word “subpoena” derives from the Latin subpoena, a combination of sub (under) and poena (penalty). Merriam Webster https://www.merriam-webster.com/dictionary/subpoena#note-1

[11]Brown v. Walker, 161 US 591, 596–597 (1896).

[12]http://www.john-hancock-heritage.com/the-liberty-affair/. Based on his experience in losing his property and having his life and freedom at risk, Hancock’s interests were perhaps most accurately described by the Supreme Court in Ullman v. United States, 350 US 422, 428 (1956): “Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies.”

[13]”Fourth and Fifth Amendment law are the traditional guardians of a particular kind of individual privacy — the ability to keep secrets from the government.” William J. Stuntz, The Substantive Origins of Criminal Procedure, Yale Law Journal, Vol.105, page 394 (1995).

[14]West Virginia Bd. of Ed. v. Barnette, 319 US 624 (1943); Wallace v. Jaffree, 472 US 38 (1985).

[15]Drug Enforcement in the United States: History, Policy and Trends, Congressional Research Service, Lisa N. Sacco (October 2, 2014), Pg. 3.

[16]The Early Years, page 14. <https://www.dea.gov/sites/default/files/2018-07/Early%20Years%20p%2012-29%20%281%29.pdf>

[17]United States v. Doremus, 249 US 86 (1919).

[18]Id. at 93.

[19] “Courts and law enforcement, embedded in the culture of prohibition, construed the language to prohibit maintenance prescriptions for those suffering from addiction.” K.J. Dineen and J.M. Dubois, Between a Rock and a Hard Place: Can Physicians Prescribe Opioids to Treat Pain Adequately While Avoiding Legal Sanction? Am J Law Med. 2016 ; 42(1): 7–52. at note 158, citing King, Rufus G. The Narcotics Bureau and the Harrison Act: Jailing the Healers and the Sick. 1953; 736:736–38.62 Yale L. J.

[20]Id. at page 3. <https://www.dea.gov/sites/default/files/2018-07/Early%20Years%20p%2012-29%20%281%29.pdf> See also, United States v. Jin Fuey Moy, 241 US 394 (1916).

[21] United States v. Linder, 268 US 5, 22 (1925).

[22]Prohibition in US Led to Exciting Times in Canada, Jan., 2, 2015, Vancouver Sun http://www.vancouversun.com/Prohibition+exciting+times+Canada/10697267/story.html

Rum-running in Windsor, Ontario<https://en.wikipedia.org/wiki/Rum-running_in_Windsor,_Ontario>

Moose Jaw Tunnels Reveal Dark Tales of Canada’s Past, March 23, 2018, The Globe and Mail <https://www.theglobeandmail.com/life/moose-jaw-tunnels-reveal-dark-tales-of-canadas-past/article4158935/>

[23]Drug Enforcement in the United States, Sacco, Pg. 3 at note 19.

[24]The Early Years, page 19. <https://www.dea.gov/sites/default/files/2018-07/Early%20Years%20p%2012-29%20%281%29.pdf>

[25]Marchetti v. United States, 390 US 39 (1968).

[26]”’[T]he two justifications for the fifth amendment privilege are “(1) preservation of official morality, and (2) preservation of individual privacy * * *’ “ United States v. Campos-Serrano, 430 F. 2d 173, 177, (7th Cir. 1970), quoting McKay, Self-Incrimination and the New Privacy, The Supreme Court Review, Vol. 1967 (1967).

[27]McKay, Self-Incrimination and the New Privacy, at 210 (emphasis added), citing United States v. Wade, 388 U.S. 218, 261 (1967). The Supreme Court Review, Vol. 1967 (1967), pp. 193–232

[28]Bookmakers had to fills out IRS forms stating their residence and business addresses,and purchase a stamp that they were “obliged to post … ‘conspicuously’ in their principal places of business.” They were also required to “preserve daily records indicating the gross amount of wagers” and “permit inspection of their books of account.” The IRS was required to provide a list of all registered bookies “upon request to any state or local prosecuting officer.” Finally, the law provided that payment of the taxes did not provide any exemption from criminal sanction “provided by a law of the United States or of any State” for engaging in bookmaking.26 USC Sec. 4412.

[29]”Evidence of the possession of a federal wagering tax stamp, or of payment of the wagering taxes, has often been admitted at trial in state and federal prosecutions for gambling offenses.” Marchetti, 390 US at 47, note 7, citing United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964) and seven other cases where convictions for illegal gambling were based on evidence of registration.

[30]United States v. Sullivan, 274 US 259 (1927).

[31]Lewis v. United States, 348 US 419 (1955).

[32]United States v. Kahriger, 345 US 22 (1953).

[33]Albertson v. Subversive Activities Control Board, 382 US 70 (1965) (emphasis added).

[34]Albertson v. SACB, 382 US at 78. A corporation or other “collective entity” may not assert the Fifth Amendment privilege against self-incrimination. Braswell v. United States, 487 US 99, 105 (1988).

[35]Id., 382 US at 79.

[36]Id., 382 US at 78.

[37]Id., 382 US at 80.

[38]McKay, Self-Incrimination and the New Privacy, pp. 205.

[39]United States v. Marchetti, 390 US at 55 (emphasis added).

[40]Leary Gets 30 Years on Marijuana Charge, The Harvard Crimson, March 12, 1966.

[41]”The [MTA] imposes a tax on transfers of marihuana [and] an occupational tax upon those who deal in the drug, [requiring] all persons who “deal in” marihuana [to pay] an annual occupational tax. *** The first of the transfer tax provisions, 26 U. S. C. § 4741, imposes a tax “upon all transfers of marihuana which are required by section 4742 to be carried out in pursuance of written order forms.” Section 4741 further provides that on transfers to persons registered under § 4753 the tax is $1 per ounce, while on transfers to persons not so registered the tax is $100 per ounce. The tax is required to be paid by the transferee “at the time of securing each order form.” **** Another statutory provision, 26 U. S. C. § 4773, assures that the information contained in the order form will be available to law enforcement officials. *** Finally, 26 U. S. C. § 4744 (a) makes it unlawful for a transferee required to pay the § 4741 (a) transfer tax either to acquire marihuana without having paid the tax or to transport, conceal, or facilitate the transportation or concealment of, any marihuana so acquired.” Leary v. United States, 395 US 6 (1969).

[42]Leary v. United States, 395 US at 29.

[43]Id., 395 US at 18.

[44]Note: Taxation of Illegal Narcotics: A Violation of Fifth Amendment Rights or an Innovative Tool in the War Against Drugs? 11 St. John’s J.L.Comm.

[45]The provisions of ¶2 are mandatory, as ¶4 states, “Petitions that do not conform to this guidance will not generally be accepted for filing.”

[46]Paragraph 7 does not appear to invade the Fifth Amendment so much as it does the Free Exercise clause of the First Amendment, by requiring the cessation of essential religious practices for an undefined period. The consequences of noncompliance are obvious — the PRE can be rejected. Alternatively if the PRE falsely swears that the applicant has ceased using a controlled substance sacrament, the signer could be indicted for perjury under paragraph 3. Finally, if the applicant does in fact cease using the controlled substance sacrament, or substitutes a non-controlled substance (for example, by using a “vine-only-Ayahuasca” that contains no dimethyltryptamine) the applicant will thereby undermine its claim that use of Ayahuasca made with dimethyltryptamine is “essential” to its religious practice. The Guidance thus contains more pitfalls than the risks of self-incrimination.

[47]McKay, Self-Incrimination and the New Privacy, at 195, citing Watkins v. United States, 354 U.S. 178, 195–96 (1957); Bart v. United States, 349 U.S. 219 (1955), and other precedents. Kastigar v. United States, 406 U.S. 441, 444–445 (1972); Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

[48]Minnesota v. Murphy, 465 US 420, 425 (1984); accord, People v. Garcia, 224 Cal.App.4th 1283, 1290 (2014)(“A privilege that is not ‘self-executing’ applies only where it has been invoked.”)

[49]Marchetti v. United States, 390 US at 52; accord, Schneckloth v. Bustamante, 412 US 218, 237, n. 18 (1973) (“We reasoned that there could be no choice when the gambler was faced with the alternative of giving up gambling or providing incriminatory information.”).

[50]”There is, the Court said, ‘no constitutional right to gamble.’” Marchetti, 390 US at 51, quoting Lewis v. United States, 348 US at 423. Marchetti v. United States, 390 US at 52; accord, Schneckloth v. Bustamante, 412 US 218, 237, n. 18 (1973)(“We reasoned that there could be no choice when the gambler was faced with the alternative of giving up gambling or providing incriminatory information.”).

[51]O Centro, 546 US at 423.

[52]Spevack v. Klein, 385 US 511, 517 (1967).

[53]Id., 385 US at 516.

[54]Lefkowitz v. Turley, 414 US 70 (1973).

[55] Marchetti v. United States, 390 US at 53.

[56] Marchetti v. United States, 390 US at 54.

[57]Lawyers may also want to consider the possibility of pursuing class action litigation on behalf of churches acting on behalf of their membership to obtain relief from the Fifth Amendment incursions presented by the Guidance, and perhaps for the purpose of seeking RFRA exemptions for a class of members who meet the requisites of individual devotion to a faith that requires the use of a sacramental psychedelic, but are not members of any organized church. While a discussion of class action procedure is clearly beyond the scope of this article, future research into the topic should be conducted.

[58] CHLQ v. Mukasey, 615 F.Supp.2d at 1218.

[59] “[A] person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 US 707, 716 (1981).

[60]Orloff v. Willoughby, 345 US 83 (1953); Blumenthal v. FCC, 318 F.2d 276 (D.C. Cir. 1963).

[61] Although the Guidance indicates that failure to provide additional information requested pursuant to paragraph 5 within 60 days will result in the DEA “considering the petition to be withdrawn,” this provides an astute practitioner with no certainty that this will be the end of the matter. The Guidance provides no protections from information-sharing with the DEA’s enforcement division, and paragraph 9 provides no protection from “other laws;” thus, if seized with curiosity, the DEA would be free to issue a subpoena for the requested information. Presented with an administrative subpoena from the DEA, and absent a valid Fifth Amendment objection, judicial review would likely be fruitless, because “the Fourth Amendment requires only that a subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” See, United States v. Utah Department of Commerce, Case №2:16-cv-611-DN-DBP, Docket # 82 (Utah, July 27, 2017), quoting Becker v. Kroll, 494 F.3d 904, 916 (10th Cir. 2007).

[62] Leary v. United States, 395 US at 28.

[63] Leary v. United States, 395 US at 29.

[64] Leary v. United States, 395 US at 29.

[65] Kastigar v. United States, 406 U.S. 441, 444–445 (1972); Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answer might incriminate him in future proceedings.”)

[66] In re Dole Food Co, Inc. Stockholder Litigation, 2015 WL 832501 (Del. Chancery Ct. February 19, 2015).

[67] United States v. Dunnigan, 507 US 87, 94 (1993).

[68] “A substantial burden must be more than an ‘inconvenience.’” Guam v. Guerrero, at id., quoting Worldwide Church of God v. Phila. Church of God, Inc., 227F.3d 1110, 1121 (9th Cir. 2000). A law imposes a “substantial burden” on the practice of religion: “when individuals are … coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” Navajo Nation v. US Forest Svc., 535 F.3d 1058 (9th Cir. 2008) (en banc), cert. denied, 129 S.Ct. 2763 (2009). “[T]he substantial burden test focuses on the extent of governmental compulsion involved.” (AG’s Memo, 13th Principle, Exhibit J, p. 4.) “A statute burdens the free exercise of religion if it ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs,’” including when, if enforced, it “results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.’” Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002), quoting Thomas v. Review Bd. of Ind. Employment Sec. Div.,450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) and Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961).

[69] “Once the danger of incrimination has been removed, however, as by a sufficient grant of immunity, the testimony or documents can no longer be withheld.” McKay, Self Incrimination and the New Privacy, at 196, citing Ullmann v. United States, 350 U.S. 422 (1956).

[70] The First Amendment also protects against compelled self-disclosure of internal church information and documents under both the Free Exercise and Entanglement Clauses; however, a discussion of these authorities must wait to be addressed in a future article.