Authorities in Virginia think they may have found the solution to the meth epidemic: target people who have never made or used meth.
They don't put it in quite those terms. But that's precisely the effect if officials decide to start tracking every purchase of cold and allergy drugs such as Sudafed. Those over-the-counter nostrums contain pseudoephedrine, a component often used to make methamphetamine.
Why would this be a bad idea? Several reasons.
First, it's out of all proportion to the problem. Let's stipulate that meth is very bad and people should stay the heck away from it. But according to a story in last week's Times-Dispatch, only 487 out of 34,168 Virginia drug arrests in 2010 were for meth or amphetamine possession. That's a little less than 1.5 percent. (Note also the "or amphetamine.") By contrast, how many Virginians get colds and allergies in the course of a year?
Second, it almost certainly will not impede the meth trade; it will only increase consumption of meth from Mexican narco-labs. This isn't mere speculation. It's exactly what happened in Oklahoma, which imposed restrictions on the sale of cold and allergy medication several years ago to combat meth trafficking there.
Result? "Six and a half pounds of Mexican meth, also known as 'Ice,' has been taken off the street by the Oklahoma Bureau of Narcotics," reported an Oklahoma City TV station last year. "It's the second meth bust in the last week." The story quoted the head of the state narcotics bureau, who said, "The No. 1 threat to the citizens in the state of Oklahoma is the Hispanic sell groups that have infiltrated rural Oklahoma." Oklahoma did not reduce consumption—it outsourced production. Some victory.
Third, the proposal targets the wrong thing. The problem is meth, not meth precursors. Cold and allergy remedies can be used to make meth, but so can soda bottles and coffee filters. Applying the fanatical logic of the nation's drug war, if restricting the sale of allergy medicines does not stop meth use—and it won't—the next step should be to track the sale of 2-liter soda bottles.
Fourth, limiting the sale of over-the-counter medicines, as Virginia officials are considering doing, almost inevitably will entrap law-abiding citizens who unwittingly violate purchase limits. Consider what happened to Sally Harpold, an Indiana grandmother who was hauled off in handcuffs, booked and embarrassed on the front page of the local paper a couple of years ago. As Reason magazine's Jacob Sullum reported, her crime—if you want to call it that—was "buying a box of Zyrtec-D allergy medicine for her husband, then buying a box of Mucinex-D decongestant for her daughter at another pharmacy less than a week later. That second transaction put Harpold six-tenths of a gram over Indiana's three-gram-per-week limit" for pseudoephedrine.
Fourth, proposals such as these accelerate a regrettable trend recently reported in The Wall Street Journal: the diminishing emphasis on mens rea, or "guilty mind." Once upon a time, legal standards in America generally required a person to know they were committing a crime in order to find them guilty. Increasingly, individuals can be convicted for violating statutes they did not even realize existed.
Among other examples, the story cites Gary Hancock of Flagstaff, Ariz., who was convicted of misdemeanor domestic violence in the early 1990s. Congress later passed a law forbidding people with such convictions to own firearms. Hancock hadn't been told about the law, so he hadn't sold his guns—and ended up with a five-year prison sentence. As his lawyer said, prosecutors "did not have to prove he knew about the law. They only had to prove that he knew he had guns."
You can easily see how this would apply to pseudoephedrine. Nobody who buys cold medicine is unaware that he has bought it.
Fifth, and perhaps most perniciously, the proposed limits on over-the-counter medicine amount to dragnet surveillance. Dragnet surveillance—roadside checkpoints, NSA wiretaps, random drug testing, and so on—not only abandons the notion of reasonable suspicion. It abandons the concept of suspicion altogether, enabling the authorities to monitor and investigate ordinary citizens as they go about their daily lives, on the mere off chance that a few here and there might do something criminal.
The logic behind Virginia's anti-meth measures is the logic of gun control. That warped reasoning goes like this: Millions of Americans use a lawful product in a lawful manner, but because a minute fraction use it unlawfully, everyone else will have to submit to government monitoring, inconvenience and constraint. Including you, dear citizen. Because while you have given no one any grounds to think you have broken the law, it is theoretically possible that you might do so at some point in the future. You are not to be trusted.
Is this the message Virginia really wants to convey?
A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared in the Richmond Times-Dispatch.