A Riddle: Same Crime, Different Time

Let me offer a riddle:

• What happens when the American pharmaceutical industry is taken to court for allegedly distributing products containing ephedrine or pseudophedrine? The drug-company officials are released from the courtroom with apologies from the judge for having wasted their time. Meanwhile a limousine waits outside the back door of the courthouse to whisk them away to the country club.
• What happens when South Asian mom-and-pop convenience store owners are taken to court for allegedly distributing products containing ephedrine or pseudophedrine? They are led out of the courtroom in handcuffs with U.S. marshals waiting to throw them into prison, or worse, to turn them over to immigration officials.

I’m neither so creative nor so diabolical as to have imagined these competing scenarios. Rather, they come directly from two cases: one decided by a federal court of appeals earlier this week (the drug-company case) and another that the ACLU Drug Law Reform Project litigated last year in a federal court in Georgia (the South Asian store-owner case). Reading through the court of appeals case, courtesy of How Appealing, I was struck by how the facts alleged in the two cases were nearly identical but the outcomes entirely different.

In Ashley County v. Pfizer, Inc., the U.S. Court of Appeals for the Eighth Circuit reviewed a lawsuit filed by twenty Arkansas counties against five major American pharmaceutical companies. The counties claimed that the drug companies must be held accountable for distributing products containing ephedrine or pseudophedrine, knowing that their products were being used illegally to manufacture methamphetamine. However, a federal district court threw out the lawsuit, holding that the drug companies should not be held responsible, even if they really did distribute substances knowing that they were to be used to make meth. The court of appeals had no problem affirming that order.

In the very similar case we litigated two years ago, the accused, our clients, were not Big Pharma but South Asian immigrants who owned mom-and-pop convenience stores. The case came out of an investigation colorfully dubbed “Operation Meth Merchant”. In the end, the Feds and the Georgia Bureau of Investigation arrested 54 convenience store owners in Northwest Georgia for allegedly selling pseudophedrine with knowledge that the product would end up in the purchasers’ home-cooked meth. Of course, law enforcement did not go after Target and Wal-Mart and the other big box stores who also sell meth-making ingredients. They went after small-time convenience stores, and 51 of the 54 arrestees in this rural Georgia county were South Asian.

Most of the 54 store owners were convicted. Many of them were sentenced to long prison terms. And quite a few were subsequently deported as a result of these convictions. As an August 2005 New York Times headline recognized even then (“Cultural Differences Complicate a Georgia Drug Sting Operation”), race and ethnicity play a central role determining who does time for the same crime.

Maybe there will be a sequel to Operation Meth Merchant where the feds go after Target; or a follow-up to Ashley County where Big Pharma executives are imprisoned for engaging in the same conduct as our clients in Georgia. But I doubt it.

Whether you are escorted out of court by your personal limo driver or by a U.S. Marshal should not depend on your skin color, or on whether you work for a convenience store, Wal-Mart, or Pfizer. Nor should it depend on whether you are a titan of industry or a bit player for a mom-and-pop shop.

The reality is that our government is no better off than those addicted to methamphetamine. America is addicted to a drug policy that – after forty years – we can safely say has proven a complete and utter failure. Not only have law enforcement tactics ala Operation Meth Merchant failed to rid our streets of meth and meth precursors, they have also taken an unforgivable toll on people of color. Let’s hope that our new president will reconsider American’s approach to drugs and seek solutions that help, not harm, the very people they are meant to serve and protect.