Recently by Roger Roots: The Federal Rules of Criminal Procedure: One of the Most Evil Books inPrint
Every decade or so, a new drug abuse epidemic is said to be destroying the very fabric of American society, necessitating a government crackdown or even a "war" to protect us all from it. There have been opium and heroin scares, numerous cocaine scares, endless marijuana scares, and of course that "crack" scare of the 1980s, which drastically increased America's incarceration rate. Untold thousands of years of prison time have been served by unfortunate possessors, buyers and sellers of these substances over the past century.
The crack scare of today is methamphetamine, a (relatively) cheap stimulant that can be used as an anti-sleep medication, a dietary aid or an energy booster. Various forms of methamphetamines, or home-cooked "speed" have displaced cocaine as the danger drug of the day. Government officials in a majority of U.S. counties now report that meth is their counties' most serious drug problem. Meth use is said to be particularly rampant in the American western states, where the substance is in high demand. States like Montana, South Dakota, Idaho, Colorado and Arizona have all launched extensive efforts — both private and public — to fight the meth menace.
Anti-meth billboards depicting toothless, acne-scarred zombified methheads now blanket the landscapes of western states. So-called public service announcements blare accounts of girls and boys next door who descended into lives of hooking, homelessness and hopelessness after getting hooked on meth. The effects of meth on health and appearance are notorious. Before and after photos of hardcore meth addicts are particularly difficult to look at.
Unlike cocaine, opium and heroin, which are derived from plants that do not grow well in North America, meth can be manufactured easily by Americans. Even poor Americans in trailer parks. But some of the primary ingredients are difficult to obtain in large quantities. Most meth recipes (there are many), require substantial amounts of precursor chemicals such as ephedrine, pseudoephedrine or phenylpropanolamine. These are chemical antihistamines commonly found in over-the-counter allergy and cold medicines such as Sudafed, Actifed and Claritin.
Since the early 1990s — in response to efforts by Congress to require prescriptions to purchase such products — pharmaceutical companies and retailers such as Target, Walgreens, CVS and Winn-Dixie have restricted sales of pseudoephedrine-containing products. Purchasers have been limited to buying small quantities and required to show I.D. to purchase them. In 2005, Congress passed the Combat Methamphetamine Epidemic Act (CMEA) as an amendment to the renewal of the USA PATRIOT Act. The CMEA requires record-keeping and identification of all sales and reports to law enforcement of any "suspicious" transactions. Purchasers are limited to "3.6 grams of pseudoephedrine base" per day and 9 grams per month. (Buying more than that is a federal misdemeanor.) (Ironically, the very first arrest under the CMEA occurred when an Iowa allergy sufferer named Tim Naveau was prosecuted in 2006 for purchasing too much Claritin D. Naveau had stocked up on the allergy medication because his teenage son, who was also an allergy sufferer, needed several packages because he was headed off to a church camp.)
An Epidemic of Entrapment
Restrictions on the purchase of meth precursor chemicals have been a boon to law enforcement entrapment schemes. For years, undercover government agents have been have been launching, building, supplying, and then busting meth manufacturing operations. Claims of entrapment are so closely linked to methamphetamine manufacturing cases that most meth-lab conviction appeals focus on officer conduct rather than defendant conduct. See here, here, and here. In this case, an undercover government informant delivered a van with 52 gallons of ingredient chemicals to a threesome of dupes. In this case, undercover informants provided not only the precursor chemicals but also the very location for the lab and the necessary equipment for manufacturing meth. Law enforcement agencies have even set up fake chemical supply stores in order to get the precursor chemicals out onto the street so they can bust meth lab operators.
But since the U.S. Supreme Court's 5-4 decision in United States v. Russell in 1973, the question of entrapment has turned on whether a defendant was "predisposed" to engage in drug manufacturing. Since the Russell ruling, it has been considered permissible for law enforcement agencies to provide the hard-to-acquire chemicals for manufacturing meth to meth makers and even to instruct them regarding how to manufacture the drug so long as the agents do not force the idea of manufacturing meth upon the minds of suspects. And since most defendants have drug histories, most judges and juries conclude that the promise of vast riches provided by undercover cops with buckets of chemicals did not overcome the wills of meth defendants.
In 1995, California Bureau of Narcotics Enforcement (BNE) agents enticed a threesome of California ex-cons (Erwin Spruth, Michael Spruth and John Roger Rowley) into manufacturing more than a million doses of methamphetamine near Redding, California. Undercover agents provided most of a 55-gallon barrel of ephedrine on credit to the defendants. At least a million doses of methamphetamine were released to the public by this means.
In a remarkable federal court hearing in Sacramento in 1998, U.S. District Judge Lawrence Karlton said that the narcotics agents helped "poison the public" by handing out huge amounts of drug ingredients in their "reverse sting" operation. The officers, said Judge Karlton, had committed crimes that would justify life in prison "if they did not have badges." "How many people got started on meth who wouldn't have if not for the conduct of these agents?" the judge asked. "There may be some child out there who is dead because of what went on."
Yet Judge Karlton refused to dismiss the charges against the three defendants, and allowed the prosecution to go forward. The Spruths and Rowley have now been in federal prison for most of the past two decades. The undercover officers who orchestrated the affair were all given promotions and accommodations. In the interests of full disclosure, I am currently representing the Spruths and Rowley in a post-conviction proceeding in the U.S. Ninth Circuit Court of Appeals. We are alleging that the Narcotics agents so materially misrepresented their conduct during the original proceedings that the entire case merits further review.
Between 2003 and 2004, a Trinity County, California grand jury launched an investigation into the conduct of the BNE officers in the Spruth and other cases. The grand jury found that that BNE agents had given inaccurate testimony in the 1998 hearing and that more than five million doses of methamphetamine were released to the public by the undercover agents. The grand jury concluded that the California BNE had adopted a policy of using reverse sting chemical distributions to raise cash for BNE off-budget accounts, rather than to reduce methamphetamine sales. After hearing hundreds of hours of testimony, the Trinity County grand jurors unanimously voted to indict 32 law enforcement officers involved in the reverse stings. The State Attorney General refused to prosecute the 32 agents, however. (In response to the government's refusal to prosecute the agents, the courageous Trinity County grand jurors courageously approved a second indictment naming then-California-Attorney-General Dan Lundgren (now a U.S. Congressman) among the defendants; again, no California state prosecutor would proceed with the indictment.)
Remember, these events occurred more than 15 years ago, and the meth problem that arose in the western U.S. in the last decade was almost certainly aided by the entrapment operations of government agencies such as the California BNE. By some reports, California was the "source country" for as much as 80 percent of the nation's meth supply during the past decade. Of course, large amounts of meth precursor chemicals are still obtained the hard way, by multiple small purchases by of Sudafed, Claratin and other over-the-counter medicines. Precursor chemicals are also brought in from other — freer — countries like Mexico and China where sales are not so regulated. But an inconvenient fact is that vast amounts of the chemicals that are used in the manufacture of methamphetamine in the United States are provided by law enforcement agencies in their various entrapment operations nationwide.