Kenneth Rau, the Bismarck, North Dakota, man who suffers the dubious distinction of being the first person in the United States prosecuted under laws criminalizing the possession of salvia divinorum, has been offered a plea deal under which he would serve five years in state prison, he told the Chronicle this week.

(Update: Charges have been downgraded to possession -- Rau still faces up to five years, but as a charge he can fight, not a plea bargain -- DB via Phil, 8/19.)

Kenneth Rau

But driven by little more than the now infamous YouTube videos of young people under the influence acting strangely and the story of one Delaware youth whose parents blamed his suicide on salvia, state legislators have not waited for the DEA's measured considerations to act. Since Delaware became the first state to ban salvia, at least eight others, including North Dakota, followed suit. Moves are currently afoot in a number of other states to join the club, with Florida and Virginia being the latest states to pass laws criminalizing the plant.

Salvia became illegal in North Dakota on last August 1, after a bill sponsored by three Republican lawmakers, state Sens. Dave Oelke and Randel Christmann and state Rep. Brenda Heller, sailed through the legislature earlier that year. None of the three legislators responded to Chronicle requests for comment this week.

Rau has said he did not know the drug was now illegal when he bid on an eight-ounce bunch of salvia leaves and was pleasantly surprised when his $32 bid came in highest. The local TV station's web site has inadvertently supported Rau's contention. When the Chronicle first wrote about Rau's case in April, that site's online version of the news report about Rau's arrest was still pulling up salvia ads by Google. (From the east coast at least it is still doing so as of this writing.) Rau emailed the link to Drug War Chronicle, proving that the salvia ads are showing up on computers in North Dakota.

Burleigh County States Attorney Cynthia Feland did not respond to Chronicle calls seeking confirmation or denial of the plea deal. Rau said the deal was offered through his attorney, Benjamin Pulkrabek, from just across the Missouri River in Mandan.

"My lawyer told me she offered me five years if I pleaded guilty," said Rau. "He said he didn't think I would take it, but he had to ask. He was right -- I am not going to accept that. I just don't think depriving someone of his freedom for some dried plant leaves is right."

Rau, a bottling plant worker with an interest in herbalism, altered states, and religion and spirituality, was arrested by Bismarck police on April 9 when they searched his home looking for his adult son, who was on probation for drug charges. Police found a marijuana pipe, eight ounces of salvia leaf, a quantity of amanita muscaria mushrooms, and a number of other herbal products.

Although Rau bought the salvia leaf on eBay for $32, he faces a possible 20-year sentence after being charged with possession of the now controlled substance with the intent to distribute, based on prosecutors' assertions that the leaf contained hundreds of possible doses. He also faces a marijuana possession charge for the pipe. Although prosecutors originally charged him with possession of psilocybin because of his amanita muscaria mushrooms, they have since figured out that amanita does not contain psilocybin and have dropped that charge.

Salvia divinorum, a member of the Mexican mint family, has been used by Mazatec shamans for hundreds of years. Smoking or chewing the leaves, or more commonly, concentrated extracts, can produce intense, albeit short-lived hallucinogenic experiences. While the plant has become notorious through YouTube videos of young people smoking it and behaving strangely, it is also of interest to "psychonauts," or people attempting to explore consciousness through herbal means.

Researchers say that while salvia's effects on consciousness may be disquieting, the plant has not been shown to be toxic to humans, its effects are so potent it is unlikely to be used repeatedly, and its active property, salvinorin A, could assist in the development of medicines for mood disorders.

salvia leaves (courtesy erowid.org)

I think salvia should be regulated in the same way we regulate alcohol," he said. "Its effects are quite different, but there are some parallels in terms of the possible dangers from its use. Like alcohol, people can exhibit dangerous behavior if they take excessively high doses. That's why we prohibit driving while intoxicated or allowing minors to drink. But it's obvious that many, many people can enjoy alcohol without getting into trouble with it, and they should not be subjected to harsh penalties. Neither should adults who want to use salvia."

Not that the drug will ever be a popular recreational drug, he said. "Salvia can be very strange and interesting, but it's not something most people consider fun, it's not a recreational kind of experience," he said. "Most people find it bewildering; it's not something most people are motivated to repeat. It won't ever become a popular drug. The main reason people seem interested in it is because the media keeps putting out these sensational stories comparing it to LSD or marijuana. That creates a misleading impression, and people who try salvia expecting something like that are usually disappointed."

salvia (and criminal defense) ads on web version of ND news station report on Rau's bust

Kenneth Rau now faces a lonely struggle. North Dakota is not noted for its abundance of attorneys skilled in defending cases involving arcane plants, and national organizations have yet to respond to his entreaties for help, Rau said.

Still, Rau is trying to get a defense together. "I'm hoping to take depositions from people like Dr. Andrew Weil or Daniel Siebert or other experts," he said. "I'm looking for attorneys in their vicinities who might be willing to take a deposition."

And he hinted that he may also attempt a jury nullification strategy. "My defense will be to fall back on the fact that the jury is the ultimate judge of the law," he said. "They don't have to listen to the judge; they have the power. Let the jury decide what kind of state they want to live in," he said.

No trial date has been set yet. In the meantime, Rau continues working full-time for a soft drink bottler and subjecting himself to court-ordered humiliations. "I'm trying to live my life," he said. "I've got a full-time time job and another one on the weekends. I also have to take pee tests twice a week and pay them $26 a week for that privilege, on top of trying to pay for lawyers."

In what is likely the first arrest for possession of salvia divinorum anywhere in the nation -- and definitely a first in North Dakota -- a Bismarck man now faces years in prison after he bought a few ounces of leaves on eBay. Kenneth Rau, a bottling plant worker with an interest in herbalism, altered states, and religion and spirituality, was arrested by Bismarck police on April 9 when they searched his home looking for his adult son, who was on probation for drug charges.

Kenneth Rau

"He is being charged with possession of salvia with intent to deliver, as well as possession of psilocybin with intent, and possession of marijuana," she said. Although Rau told the Chronicle he thought he would be charged with a school zone violation as well, which would have made his intent offenses Class A felonies punishable by up to 20 years in prison, that is not the case, said Feland. "He is not being charged with a school zone violation," she affirmed.

(The psilocybin charges could go up in smoke. The amanita muscaria mushrooms that he possessed are not controlled substances under federal law and, while hallucinogenic, do not contain psilocybin. The active ingredient in amanita muscaria mushrooms is muscimole.)

Rau was being charged with possession with intent because of the weight of the leaves, she said. "We look at the typical use quantity," she said, "and it is similar to marijuana, with a typical use dose of .25 grams to .5 grams, and he had significantly more than that," she said.

salvia leaves (courtesy erowid.org)

Researchers say that while salvia's effects on consciousness may be disquieting, the plant has not been shown to be toxic to humans, its effects are so potent it is unlikely to be used repeatedly, and its active property, salvinorin A, could assist in the development of medicines for mood disorders.

There are hazards to messing with hallucinogens, one expert was quick to point out. "It's an hallucinogen, and while its hallucinogenic actions are different from those induced by LSD and other hallucinogens, it has the liabilities that hallucinogens do," Bryan Roth, a professor of pharmacology at University of North Carolina's School of Medicine, the man who isolated salvinorin A, told Drug War Chronicle last month. "When people take it, they are disoriented. If you don't know where you are and you're driving a car, that would be a bad experience."

Still, said Roth, while it may make you freak out, it isn't going to kill you. "There is no evidence of any overt toxicity, there are no reports in the medical literature that anyone has died from it. The caveat is that there have been no formal studies done on humans, but the animal data suggests that it doesn't kill animals given massive doses, and that's usually -- but not always -- predictive for human pharmacology."

The DEA considers salvia a drug of interest, but has yet to move to place it under the Controlled Substances Act. A DEA spokesman told the Chronicle recently that the plant is being reviewed to see if it meets the criteria for inclusion on the list of controlled substances.

But driven by little more than the YouTube videos and the story of one Delaware youth whose parents blamed his suicide on salvia, state legislators have not waited for the DEA's measured considerations to act. Since Delaware became the first state to ban salvia, a handful of others, including North Dakota, followed suit. Moves are currently afoot in a number of other states to join the club.

salvia (and criminal defense) ads on web version of ND news station report on Rau's bust

After Rau was arrested earlier this month, Bismarck police warned that it could be only the beginning in the fight against the member of the mint family. "It sure looks like there could be a market, based on the amount he had", Lt. Bob Hass told reporters. "This is the first we've seen of it." Hass did not return Chronicle calls for comment this week.

While salvia information web sites like Salvia.Net do place a single dose of salvia leaf at between .25 gram and one gram, similar to County Attorney Feland's estimate, intent to deliver still seems a stretch. "I bought eight ounces of leaf on eBay by bidding $32 for it," said Rau. "Now they're charging me with possession with intent. That's silly. Nobody wants leaves. Everyone is buying those 10X and 20X and 30X extracts." [Ed: Not to mention that on eBay one buys what is being offered a sale, not half or a tenth or twentieth of it.]

Rau was also not impressed by the prosecutor's dosage estimates. "This is a clear ploy to exaggerate the number of saleable units," he complained. "These drug warriors have long used this ploy to make dealers out of everyone. Accepting those figures, an ounce of Salvia Divinorum would give 120 doses and make anyone holding an ounce of it a dealer. This is ridiculous since an ounce is clearly the standard saleable unit for leaf. Applying the prosecutor's standard marijuana dosage and saleable quantity would be the amount that would fit in the end of a pinch hitter. This standard would make anyone holding even an eighth ounce of marijuana a dealer."

Rau also scoffed at the notion that anyone is going to be buying fractions of an ounce of salvia leaf. "You can buy an ounce online for as little as $10," he pointed out. "Who is going to split that up into smaller quantities? Hell, you would probably end up spending more on baggies that you did on the leaf," he said.

"This is ridiculous legislative overreaching," said Rau of the new law. "They only based it on those wacky YouTube videos, and even on those, you see people trying to abuse the stuff as much as possible and ham it up, and it still doesn't hurt them. And why jump from selling it in stores to making it a felony," he asked, "don't they do misdemeanors anymore? I didn't even know it was illegal here, and with their first prosecution they go for the max."

The local TV station's web site has inadvertently supported Rau's point. At the time of this writing, an online version of the news report about Rau's arrest was still pulling up salvia ads by Google. Rau emailed the link to Drug War Chronicle, proving that the salvia ads are showing up on computers in North Dakota.

A mild-mannered 46-year-old, Rau's interest in salvia derived from a broader interest in herbalism, religion and spirituality, as well as efforts to deal with his own inner demons. "I read that salvia facilitates lucid dreaming, so I tried chewing some leaves before bed time, and it was interesting because I would see faces and remember names I had long forgotten."

He also tried salvia as a cure for depression. "I have some childhood issues to deal with. They had me on Paxil," he said. "They want you to take their pharmaceuticals, but if you want to take an herbal remedy, they want to throw you in prison. Are they going to save me from myself by throwing me in prison for years?"

Now, Rau is fighting for his freedom, but there aren't many resources in North Dakota, and he doesn't even have a lawyer yet. "The ACLU doesn't even list anyone in the state," he said. "I've emailed the ACLU Drug Law Reform Project, but I haven't heard back from them yet."

Still, he said, his arrest has motivated him. "Maybe this is an opportunity for me to join the fight," he said. "I've never been a drug user, never been arrested. I started experimenting with this stuff because I thought it was legal. I didn't want to get into trouble, but now they're treating me just like some meth dealer."