By Jason Johnson and Gabriel Tynes
Of the 2,460 miles of Interstate 10 that stretch from California to Florida, herbal supplements containing kratom are perfectly legal — with the exception of the 66.2 miles that run through Coastal Alabama.
Here, legislators added two of the natural plant’s psychoactive alkaloids to a list of controlled substances in 2016. From a legal standpoint, the legislation put kratom in the same category as cocaine, fentanyl, heroin and other Schedule I narcotics and created stiff criminal penalties for possessing or selling it.
When he was arrested on the side of I-10 on Oct. 22, 24-year-old Noor Yousef — a non-English speaker who has only lived in the United States around two years — didn’t know about Alabama’s law, but the Baldwin County deputy who spotted his van and followed it until he could initiate a traffic stop did.
Another officer who stopped Yousef earlier that day in Mississippi, where kratom is legal, knew it too.
“[Yousef] volunteered to the officer in Mississippi that he was carrying kratom, and instead of simply warning my client that he couldn’t legally transport the kratom through Alabama, it appears the officer played a game of ‘gotcha’ and called his colleagues [in] Alabama to give them a tip for a bust,” Yousef’s attorney, John Beck, told Lagniappe. “Shortly thereafter, officers in Alabama found a pretextual reason to pull him over and arrested him for trafficking a controlled substance.”
What is kratom?
Kratom is made from the dried leaves of the mitragyna speciosa tree, a member of the coffee family native to Thailand and other Southeast Asian countries where people have consumed it for centuries. In the U.S., it’s commonly sold as an unregulated herbal supplement in powders, capsules and extracts.
While kratom is not an opioid itself, two of its psychoactive alkaloids — mitragynine and 7-hydroxymitragynine — have been shown to produce similar effects by binding to opioid receptors in the human brain. This has made kratom products popular among people seeking a legal high, but also among those looking for an alternative to opioid painkillers or a way to cope with withdrawal from them.
While there’s much debate about the merits and potential risks of kratom, many agree the plant and its effects merit further scientific analysis. Nevertheless, there has been an ongoing battle in Washington, D.C., and state legislatures across the country in recent years over its legal status.
Currently, Alabama is one of only six states that have flatly outlawed kratom, though others have passed laws to more tightly regulate the substance or ban certain adulterated kratom products — meaning those which synthetically alter or exacerbate the plant’s psychoactive components or mix kratom with other drugs.
In recent years, the U.S. Food and Drug Administration (FDA) has also issued multiple public health advisories about kratom products and advised citizens not to use them due to their “potential for abuse, addiction and serious health consequences, including death.” It has also made multiple unsuccessful recommendations for the Drug Enforcement Administration (DEA) to schedule kratom as a controlled substance.
The DEA announced plans to temporarily list kratom as a Schedule I substance in 2016, which would have banned it across the country, but public pressure and a push from a contingent in Congress led to the DEA withdrawing its proposal and asking the FDA to produce more research and information.
The FDA’s position has not changed, though.
“There are no FDA-approved uses for kratom, and the agency has received concerning reports about the safety of kratom. FDA is actively evaluating all available scientific information on this issue and continues to warn consumers not to use any products labeled as containing the botanical substance kratom or its psychoactive compounds, mitragynine and 7-hydroxymitragynine,” an agency spokesperson said this week. “The FDA encourages more research to better understand kratom’s safety profile, including the use of kratom combined with other drugs.”
The FDA linked 44 deaths to kratom use around the world as part of a public health advisory issued in 2018, but a review of those cases by the National Institute on Drug Abuse found all but one of them “appeared to have resulted from adulterated products or taking kratom with other potent substances.”
The American Kratom Association (AKA), a national kratom advocacy and lobbying group, has also been critical of the FDA’s efforts to link certain deaths to kratom.
Speaking to Lagniappe, Charles Haddow, a senior fellow on public policy with AKA, highlighted one of those “kratom-associated deaths” involved a man who was shot in the chest at close range and died from internal injuries. He also happened to have taken some kratom that day, too.
“Any death that occurs in the kratom consumer population is a tragedy, and there is a compelling need for appropriate regulation on what is currently the ‘Wild West’ for kratom products that are spiked with deadly adulterants that have killed people,” Haddow said in a written statement. “FDA has elected the option to classify kratom as a Schedule I narcotic, which would effectively strip the freedom of the more than 16 million kratom consumers in the U.S. to make informed decisions on their health and well-being.”
Why is it illegal in Alabama?
Kratom has been used in the U.S. for years, but has grown in popularity as products have become more widely available online and in stores. However, law enforcement in Alabama began to take notice when liquid kratom products with names like Vivazen and K-Chill began appearing on gas station shelves.
Those products are sold in 2-ounce shots similar to the popular 5-hour Energy drinks and are often displayed right next to those and similar supplement drinks in stores. With no regulation in place, there was nothing to stop clerks from selling kratom shots to anyone who walked in, including teenagers.
Virginia Guy, executive director of Mobile’s Drug Education Council, said she believes that was really where the “downfall of kratom” in Alabama started.
Prior to the law passing in 2016, she said the council was seeing a number of cases of kratom winding up in the hands of youth, some of whom really didn’t even know what it was they were drinking or it was something they could become addicted to.
“We know that 90 percent of addiction begins in the teenage years, and when we can delay the use of substances until the brain is fully developed, we decrease the chances of someone developing an addiction,” Guy said. “There’s basically three factors that lead to kids experimenting with drugs: One, is it available? Two, is it affordable? And three, is it socially acceptable?”
At roughly $6 a bottle and legal, Guy said kratom shots like Vivazen ticked all of those boxes. She also noted because it was an herbal supplement sometimes advertised to relieve pain, there was a lot of “misinformation” among young athletes who took it after workouts or other activities.
Since kratom was outlawed in 2016, Guy said she is seeing almost no cases of teenagers using those products, and in that sense, she said the new law has been a “very good thing.” And while they have many differences in opinion, Guy, law enforcement and most kratom advocates seem to agree it’s a good thing cases of young people using kratom are “virtually off the radar” in Coastal Alabama.
In fact, preventing the sale of kratom products to anyone under the age of 18 is a key component of the Kratom Consumer Protection Act (KCPA), which AKA continues to push in states around the country and has already seen enacted in states including Utah, Georgia and Arizona.
In addition to age restrictions, KCPA aims to regulate the manufacturing standards for kratom products at the state level to prevent the addition of adulterants as well as enhancements or the synthesization of psychoactive alkaloids found in kratom at levels higher than what occurs in the natural plant leaf. It would also require clear labeling of all ingredients and warnings of potential health risks.
Last week, the group released its 2020 legislative agenda that identified Alabama and three other states that have banned kratom as priorities, claiming “real opportunity exists to overturn those [states’] bans” and replace them with legislation similar to the KCPA that would be less restrictive.
“In Alabama, AKA has a lobbying firm retained, and early discussions with legislative leaders have been promising in terms of their interest in exploring the KCPA option,” the agenda reads.
So far, AKA has not indicated who its lobbyists have been speaking with in the Alabama Legislature. Lagniappe also reached out to the Alabama District Attorneys Association, which was instrumental in pushing the ban on kratom passed in 2016, but has yet to receive a formal response.
Arrests for kratom on the Gulf Coast
Attorney John Beck accused the officers who arrested his client, Noor Yousef, of playing a game of “gotcha,” but that’s not just his opinion.
In the civil forfeiture case Baldwin County prosecutors have since filed attempting to seize the family member’s van Yousef was using to transport kratom, they acknowledge that deputies with a special narcotics task force had been alerted “to be on the lookout” for the van.
According to police, Yousef had purchased the kratom products — around 405 pounds of them — in Louisiana and was transporting them along with several other products to Florida. Beck stressed Yousef was running a legitimate business and “legally” bought the kratom to sell to convenience stores. He said Yousef knew stores in Alabama couldn’t sell kratom, but didn’t know possession was a felony.
However, based on the weight of those products, Yousef is facing a serious felony charge of “trafficking in illegal drugs.” The 2016 law that outlawed kratom simply added it to the state’s list of “synthetic controlled substances,” even though, in most of its available forms, it’s not a manufactured substance.
Most kratom products are powders made from the plant or liquid extracts mixed with water, but like other illegal narcotics, the weight of those products in grams is how police and prosecutors determine the severity of a criminal charge. Again, from a legal standpoint, there wouldn’t be much difference in Yousef’s possible sentence if he’d been caught with 400 pounds of heroin or synthetic fentanyl.
Under Alabama law, anyone convicted of “trafficking in synthetic controlled substances” in any amount over 10 kilograms “shall be sentenced to a mandatory term of imprisonment of life.” Yousef legally bought and legally transported more than 18 times that amount through two states until he hit the Alabama state line.
“While everyone understands there is a personal responsibility for being aware of every federal, state and local law, it is also incumbent upon the authorities to administer those laws in a fair and balanced manner,” Beck said. “The problem is that kratom is currently illegal in only six states, and this somewhat unusual status can cause understandable confusion and misperceptions for those who are inexperienced or simply ignorant of the grave consequences the law in Alabama imputes to someone like Mr. Yousef, who sincerely believed he was operating inside proper legal boundaries.”
Regardless of how it’s viewed under the law, though, Yousef was trafficking kratom. He purchased pounds of the substance and was reselling it, presumably for a profit. However, others in Coastal Alabama have also recently been charged with drug trafficking offenses for smaller quantities they weren’t selling.
Last week, Jackie Ray Hagood, 35, of Florida, was stopped for a traffic violation when officers from the Orange Beach Police Department discovered 895 kratom capsules in a backpack he was carrying. They weighed 675 grams in total, and he was charged with trafficking a controlled substance.
Fairhope police found 84 grams of kratom when Christopher Wiggins, 31, of Gulf Shores, was stopped in January. Depending on the size, 84 grams would be roughly 42 kratom capsules. The criminal complaint against Wiggins specifically notes he had more than 56 grams — putting him in jeopardy of a “mandatory minimum” three years in state prison for what would roughly be four days’ worth of kratom to an average user.
It is worth noting information in Wiggins’ court file indicates he was at least given an opportunity to attend “drug court,” but he opted out of participating. The case has since been presented to a Baldwin County grand jury. His attorney has yet to respond to emails from Lagniappe seeking input on the case.
Because it’s sold as a dietary or herbal supplement, some kratom products are packaged in large quantities. Some capsules are available in 500-count packages, which might seem like a lot. However, according to kratomscience.com, the average capsule is 0.5 grams and effects are produced at around 10 capsules.
For a user taking kratom twice a day, 500 capsules would last less than a month, yet under Alabama law, it is impossible to charge someone found with that much kratom with anything but felony drug trafficking.
Another thing unique to kratom is the way it is sold. With the exception of marijuana in states where it is legal for recreational use, most drugs don’t come in professional, vacuum-sealed packaging. And with the exception of prescription pills, most controlled drugs aren’t mixed with other substances.
If it’s being weighed by police on the scene of an arrest, the packing for some kratom products would be enough to trigger certain mandatory minimum sentences by itself, and in almost every photograph released by police locally, kratom products are still in their sealed packaging.
However, John Oxford, an assistant district attorney who handles Baldwin County’s drug court cases, said regardless of what police do, the container a controlled substance is found in doesn’t count toward potential criminal penalties — whether it’s a bottle of kratom purchased from a store or a baggie filled with marijuana. He said a true weight is calculated when suspected controlled substances are tested by the Alabama Department of Forensic Sciences.
Like other drugs, another thing about kratom that can impact potential criminal changes is the weight of other non-controlled substances it’s combined with in certain products. For instance, extracts are typically combined with water, but how much of their mass comes from water varies from product to product. According to Oxford that ultimately doesn’t matter.
Speaking with Lagniappe, he said any compound that can test positively for the presence of any controlled substance is fair game when calculating the potential charges and penalties by weight under Alabama law. An example, he said, would be narcotic prescription pills that use fillers like acetaminophen, which is not controlled. However, that weight is separated out when calculating potential charges for possession of illegal hydrocodone — a controlled opioid.
“Another classic example is with LSD. Let’s say you’ve got two kids at The Hangout and one of them has acid on a handful of sugar cubes and the other has the exact same number of hits but they’re on SweetTarts instead,” Oxford said. “Well, a SweetTart weighs more than a sugar cube, so one of those guys might wind up with a trafficking charge while the other might only be charged with possession.”
A reporter contacted the Alabama District Attorneys Association, the Alabama Attorney General’s Office and various local agencies trying to get a tally of kratom-related arrests, but was unsuccessful with the exception of Mobile County District Attorney Ashley Rich’s office.
According to Rich, her office handled at least six cases involving kratom in 2019, though she said records don’t always list the controlled substances that and there could very likely be more.
In Baldwin County, Oxford said he couldn’t put a firm number on kratom cases he’s seen, but said there has been an increase in arrests over the past few months. He added there’s been “a handful or so” in recent weeks, mostly in Orange Beach and its surrounding areas, which he suspects is likely due to its proximity to Florida.
He also said kratom was an issue for prosecutors when it was still legal because some drug court participants were using it as a way to get high that didn’t show up on drug screenings. Since it was outlawed in 2016, Oxford said he’s seen other products containing Tianeptine — a synthetic substance used in some prescriptions overseas but not regulated in the U.S. — taking its place.
The three arrests mentioned in this report were all covered in the local media — two of them within the last two months. Yousef’s and Wiggins’ cases are pending as prosecutors present them to grand juries.
Whatever regulators, scientists and lawmakers determine kratom’s final legal status to be, Beck said he hopes prosecutors and police can recognize the unique situation surrounding the substance now.
“This is not a statement concerning the legitimacy of the government involving itself in the proscription of a naturally grown botanical. Nor is this concerning the larger issue of kratom’s perceived medicinal usefulness to many in the community versus the perceived merits of its illegality. This is a statement about the need for fundamental fairness in unusual circumstances,” he said. “Mr. Yousef was arrested for the most serious drug offense on the books in Alabama. If he is convicted, he will receive a mandatory life sentence, and that would truly be an unconscionable travesty of justice.”
Updated at 11 a.m., Dec. 5, to include comments from Assistant District Attorney John Oxford.
In an earlier version of this story, Lagniappe incorrectly stated that possession of more than 56 grams of kratom could result in a life sentence for an accused defendant. While that is true for opioid analogs like synthetic fentanyl, kratom is classified similarly to synthetic marijuana. Possession of those kinds of synthetic controlled substances can trigger a mandatory minimum life sentence at any amount over 10 kilograms [10,000 grams], according to state law. The mandatory minimum for quantities between 56 grams and 500 grams is three years in prison.
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