[I started writing this days ago, and the story’s gone stale, but I’m posting so little these days that I figured I should get it out there.]
Some time ago, Radley Balko brought us the story of Sally Harpold, who bought two boxes of cold medicine within a few days of each other, thus violating Indiana’s law against buying more than 3 grams of pseudoephedrine within a one week period.
The idiocy of setting the limit so low is astounding. It’s based on a single person’s normal consumption, which means that if you and your spouse catch the same cold, you each have to make a trip to the drug store to buy medicine. If your kids catch the cold too, they’re out of luck, because there’s no one left to buy medicine for them. And if you forget to take the bottle to work, you have to sniffle all day, because you can’t just buy another one. And be careful handling the bottle, because if you spill it you can’t get a replacement.
It’s almost as if they weren’t thinking at all when they wrote these laws. Or else they were thinking more about the needs of law enforcement than about anything related to justice or prevention of harm. There’s a lot of that going around.
I’ve been trying to come up with a taxonomy of bogus criminal charges—the kinds of crimes that make me very suspicions whenever I hear that someone was charged with one of them. So far, my taxonomy is pretty sparse, and I don’t have a clear idea of how the categories fit together, but I’m getting there.
For example, one of the categories is fictitious crimes. These are crimes where some of the elements are legal fiction. The classic example is Possession With Intent, in which a suspect is accused of having drugs in a large enough quantity that he must have intended to sell them, even though there’s no evidence of him having done so. Any connection to selling drugs exists only in the mind of the cop, prosecutor, or legislator, depending who you want to blame.
Closely related, but slightly different, is something I call trimming the elements. That’s when you have a crime that’s just like another crime, except it’s missing one of the elements. I’m not talking about legitimate differences in the degree of harm such as the lack of a weapon or wounding or whatever it is that makes Battery a lesser crime than Aggravated Battery. I’m talking about situations where the lesser crime has been created simply to make the job of law enforcement easier by removing an element that’s inconvenient to prove. Consider the crime of Drinking While Driving. It’s kind of like Drunk Driving, except they don’t have to prove intoxication. They just have to catch you drinking booze while driving.
When the legislature trims the elements far enough, they eventually get to things that are completely non-crimes. For example, the tricky part of arresting someone for Drinking While Driving is that the cop has to catch them in the act. Sneaky people who want to drink while driving can just pass the bottle to a friend if they get pulled over.
The legislative response has been to snip off the element of the crime that involves actually drinking the booze, resulting in Open Container laws that make it illegal to have an open alcoholic beverage container in the passenger area of a car, even if the driver isn’t drinking from it. In their zeal to punish dangerous behavior, legislators have made a crime of the completely harmless act of letting your friends drink while you drive.
Grandma Harpold’s crime seems to fall into this last category. In particular, it’s a subset of non-crimes I think of as criminalizing the suspicious. That’s when the legislature decides to make it easier for cops to arrest us by making it a crime to do something that was formerly a mere cause for suspicion. A lot of the crimes that the feds call “Money Laundering” work this way.
Until these pseudoephedrine laws were passed, a drug cop who noticed someone buying a lot of pseudo might suspect that they were planning to cook it up into some crystal meth. But bare suspicion would only be the beginning. To make his case, the cop would have to conduct a full investigation—perhaps involving surveillance, interviews, and undercover operations—until he could prove the suspect’s involvement in the drug trade.
That’s a lot of hard work. It takes time and costs money. Wouldn’t it be so much easier if, instead of all that labor-intensive investigation, the legislature just made it a crime to buy too much pseudoephedrine? That way, when cops found out someone bought a lot of pseudo, they could skip all that dreary and difficult investigation and cut straight to the arrest.
Note that in describing these bogus crimes, I’m not asking you to accept any crazy libertarian ideas about freedom. You don’t have to believe that the war on drugs is evil to understand that there’s something wrong when police can arrest a grandmother for buying medicine for her family.