All Laws Have Teeth

by Jeffrey A. Tucker
Oct. 12, 2010

It's been five years since the feds took aim at nasal decongestant. Under George Bush, a normal part of everyday civilized life became a criminal act, namely the over-the-counter purchase of Sudafed and many other products containing pseudoephedrine. You can get it now, but it is seriously rationed. You have to present your driver's license and no one without one may purchase it. The limits on quantities you are permitted to purchase fall far below the recommended dosage, and buyers rarely know when they are buying too much.

The rationing and criminalization of this product appeared as part of the Patriot Act. The replacement drug phenylephrine is far less effective on noses but more effective in Washington: the company that makes it, Boehringer Ingelheim, spent $1.6 million lobbying Washington in 2006 (the latest data) and the same amount the year before. The makers of the drug everyone actually wants are diffuse and spread all over China. Pseudoephedrine was targeted in the name of the drug war because apparently you can use it to make methamphetamine. Since the near ban, there are indications that production of the drug has gone up, mostly due to smuggling in Mexico. Even a quick google demonstrates that the gray market is thriving.

I've written with sympathy toward those who have been caught in the legal tangles; many buyers are not actually doing anything wrong. Anyone who attempts to buy it is treated like a criminal and one never knows for sure when one is buying more than the legal limit. In several cases I've highlighted, people have bought without the intent to manufacture drugs but were ensnared in any case. In other cases, people have been asked to buy for friends who may or may not have been plotting to make meth. Still other cases involve shady figures with criminal records and suspicious associations who are thereby discredited and hounded by police and judges.

In my view, every person who is ensnared deserves to be defended. Their rights are being violated. One lady in my own community faces 20 years in jail solely for buying 4 boxes in a 12-day period. News reports suggest that she is a bad person for many other reasons, and, for that reason, there has been little public sympathy for her — in the same way that people under alcohol prohibition were snagged on alcohol grounds even though the motivation for getting them was different (could be taxes or something else).

Something as serious as laws and jails should be used for punishment of those who infringe on person and property, not for self-medicating. If this lady is bad, she should be punished for things she did wrong, not for some trumped-up reason.

In any case, as with all stupid laws like this, the innocent are eventually harmed. It's strange how most people are willing to give the police and the courts the benefit of the doubt, and pretend as if the system somehow knows something that we do not know. Anyone hauled off to jail probably deserved what is coming to him, even if we don't know the specifics. People should do a better job at staying out of harm's way, of being beyond reproach. Don't play with fire and you won't get burned — this is how people tend to think of these cases.

They are blaming the victim. Somehow I suspect that the same sentiments were pervasive even in the worst totalitarian states. By the time people wake up to the reality that the law and the law enforcers are the problem, it is too late.

Just the morning this following email arrived:

In doing some internet research, I came across your article "Free the Clogged Nose-25" and I want to thank you for showing me that I'm no where near alone in my way of thinking and that the current situation that my husband and I find ourselves in is most certainly not uncommon. You see, we have 3 teenage children still living at home. In April of this year, their ages were 17, 16 and 15. Both my husband and I, along with our 3 teenagers suffer from terrible seasonal allergies and we have tried every over the counter medicine available as well as a few prescription meds. The only one that offers us any relief is Sudafed or the generic equivalent.

So, as you already know, my husband and I are the only ones in our family who can buy Sudafed. I will and have been the first to admit that in order to keep enough of the medicine for all of us, both my husband and I made purchases from more than one drug store. I knew we were exceeding our allotted amount but I also knew that the code of Alabama stated that purchasing over the allowed 6 grams per month was only unlawful "with intent to manufacture." So, since we had no intent to manufacture anything, I didn't see it as we were breaking the law.

In March of this year, local news media released word that a law was passed that would create a statewide database for all businesses selling pseudoephedrine so that customers could not bypass the limit by going from one pharmacy to another. That was the extent of the press release related to that new law. About the middle of May, my husband and I learned the hard way that they had conveniently left out a very important part of that new law when announcing it to the public. Apparently, "with intent to manufacture" had been dropped from the Alabama law regarding pseudoephedrine purchases. I'm sure you can easily guess the rest of the story. He and I were arrested for "buy/sale precursor chemicals" which on the first offense is a Class C Misdemeanor. My husband is a USMC veteran so he has a criminal record (bar fights, etc.) but never any drug charges. I have never had so much as a speeding ticket and I'm a criminal justice major in college.

Even after explaining the situation to the judge and pointing out that we are law-abiding citizens just trying to offer some comfort to our kids during allergy season, the judge still found us guilty. We have appealed that decision and will go back to court in December. We cannot hope to beat this with just the truth because obviously the truth doesn't matter, so I am going to pray that "mistake of law" will get us a not-guilty verdict this time around … or I'm going to have to find a new major!

At the time we were arrested, our oldest daughter (not living at home) was a 4.0 GPA college student majoring in forensic investigation, our middle daughter was just days away from graduating historian of her high-school senior class after already having lettered in softball and volleyball and serving as secretary in the Beta club, our youngest daughter was finishing her 10th-grade year and an A–B student who had just days before made the color guard drill team for the fall, and our son was finishing his 8th grade year, an A–B student and hard working Junior Varsity and Varsity football player. We are very very proud of our kids and hate the fact that they have had to endure any negative associations that have come from our arrest. They are so resilient, though! They know that we weren't actually doing anything wrong so they hold their heads up high and keep going.

As I suspected, these cases are not isolated. Thanks to Google News, we can learn of many such tragic cases. So far as we know, the majority of cases of arrest involve innocent people trying to unclog their noses. But even if only one in ten cases involve injustice, that is plenty of reason to repeal the law. I don't favor laws against consuming or producing meth, but, if those laws are retained, then it's the taking or making of meth that should be punished, not actions that merely seem vaguely associated with illegal activities.

In the end, this isn't about drug use or production. It is about special interests. It is about the use of fear and coercion and the expansion of state power. It is about human rights and liberty. Should we care about these things? Yes, if we care about saving civilization from its enemy, the state.
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Jeffrey Tucker is the editor of Mises.org and author of Bourbon for Breakfast: Living Outside the Statist Quo. Send him mail. See Jeffrey A. Tucker's article archives.