By Rhea Arledge
Methamphetamine: Efforts to Stem the Tide of Clandestine Methamphetamine Laboratories
With only a handful of state legislatures remaining in session and the first session of the 109th Congress only weeks away from completion, this is a good juncture for reviewing the progress made at both the federal and state levels in controlling the spread of clandestine methamphetamine laboratories across our nation. State legislative focus in the 2005 session has been on the restriction of the sale and purchase of ephedrine and pseudoephedrine-containing preparations in order to decrease the number of operating laboratories. Reports indicate that this type of legislation has been successful in reducing the number of clandestine laboratories seized by law enforcement. For example, the Iowa Division of Narcotics Enforcement reports that from January 1 through August 31, 2004, 1,075 labs were seized. For that same period during 2005, only 632 labs were seized.1 Similar reductions have been noted in Missouri and Oklahoma. The pending federal legislation introduced during the first session of the 109th Congress also focuses on similar types of restrictions in addition to funding for the clean-up of methamphetamine laboratories, and training and enforcement at the local and state levels.
State Legislative & Executive Efforts
The 2005 state legislative session was a productive one for the enactment of legislation that, in one form or another, restricts the sales quantity of ephedrine and/or pseudoephedrine-containing products; the location of ephedrine and/or pseudoephedrine-containing products in the pharmacy or retail store; the packaging of such preparations; and mandates the purchase procedure for these types of over-the-counter medicines. While the various laws enacted vary to some degree from each other, approximately 29 states enacted such legislation during 2005. In addition, Virginia recently adopted restrictions on the sales quantity and the product location through an executive directive and subsequent rules promulgated by the state health commissioner. For review of all state legislation enacted during the 2005 legislative session, please visit www.ndaa-apri.org and click on “Issues” and then “Drug Law.”
At the time of this article, approximately 68 percent of the states have some type of restriction on the sale of ephedrine and/or pseudoephedrine-containing preparations with a break-down of the restrictions as follows:
- Restrictions on the product location, product packaging and sales quantity
- Restrictions on the product location and sales quantity
- Restrictions on the products packaging and sales quantity
- Restrictions on the sales quantity and the percentage of sales
- Restrictions on the sales quantity only
- Restrictions on the product location only
Federal Legislative Efforts
S. 103: Combat Meth Act of 2005
The Combat Meth Act of 2005 was passed by the full Senate as an amendment to the FY2006 Commerce, Justice and Science Appropriations Act. The language would, in part:
- Add ephedrine and pseudoephedrine to Schedule V of the Controlled Substances Act;
- Permit exemption from the Schedule V classification by the United States attorney general if the product is determined to be formulated to prevent conversion to methamphetamine or if the attorney general determines that the product cannot be used to manufacture methamphetamine;
- Mandate that only a pharmacist, practitioner, or a person acting under the supervision of a pharmacist sell ephedrine or pseudoephedrine-containing products unless the attorney general has approved and licensed a retail distributor to do so;
- Restrict the sale of ephedrine and pseudoephedrine to not more than 7.5 grams within a 30-day period for any one person; and
- Require purchasers to present a photographic identification and sign a logbook that contains the date of purchase, name of purchaser, and the name and amount of the substance purchased.
The House version of the FY 2006 Science, State, Justice and Commerce and Related Agencies Appropriations Act does not incorporate the Combat Meth Act language. As a result, the differences will have to be resolved in conference committee. At the time of this writing the conferees for the Senate have been named, but those for the House have not been selected.
Letters of support for the incorporation of the Combat Meth Act of 2005 into the final Conference Report were sent by NDAA President Paul Logli to all members of the House Committee on the Judiciary; the House Subcommittee on Appropriations for Science, and the Departments of State, Justice and Commerce, and Related Agencies; and the Senate Subcommittee on Appropriations for Science, and the Departments of Commerce, and Justice. In addition, members of the National District Attorneys Association have been encouraged to contact those members from their congressional delegation who are involved in these relevant committees in support of the president’s actions.
 H.R. 3889: Methamphetamine Epidemic Elimination Act
Another piece of legislation worth monitoring is H.R. 3889, the Methamphetamine Epidemic Elimination Act, as it appears to have had some momentum at the time of this article. The legislation, sponsored by Congressman Mark Souder (R-IN) and co-sponsored by 50 representatives, was introduced on September 22, 2005; referred to the Committees on Energy and Commerce, Judiciary, International Relations, and Transportation and Infrastructure; and by September 27, 2005, hearings by the Subcommittee on Crime, Terrorism and Homeland Security had been held.
While there are many similarities between H.R. 3889 and the Combat Meth Act of 2005, there are several areas of the bill that should be noted:
- H.R. 3889 does not classify ephedrine and pseudoephedrine as Schedule V controlled substances;
- H.R. 3889 restricts the retail sale of pseudoephedrine and phenylpropanolamine to 3.6 grams in a single transaction. The language of H.R. 3889 would permit the purchase of 3.6 grams of pseudoephedrine by the same individual at many different retail stores in single transactions, which could result in the accumulation of large quantities of the substances for the covert manufacture of methamphetamine without being in violation of the act.
- H.R. 3889 does not contain any provisions requiring the production of a photographic identification by a purchaser or requiring the signature of the purchaser. In addition, the law does not provide for any type of mandatory recording or maintenance of a log containing the information surrounding the sale of ephedrine/pseudoephedrine.
Members of NDAA have been encouraged to contact their members in the House of Representatives in order to emphasize the differences between the H.R.3889 and the Combat Meth Act of 2005 and to voice their opposition to the more lenient provisions found in H.R. 3889.
Appropriations
At the time of this writing, only two appropriations bills have passed both the House and Senate (Appropriations for the Departments of Interior and Environment, P.L.109-54, and Appropriations for the Legislative Branch, P.L. 109-55). A continuing resolution (H.J. Res. 68) has been passed, which will keep the programs and activities for the remaining departments operating at the lowest of the legislation as passed by the House, the legislation as passed by the Senate, or the current rate of spending for the current FY2005 programs. Under the continuing resolution, the programs will be funded until November 18, 2005, at the latest.
With additional funding needed for the wars in Iraq and Afghanistan and the hurricane relief efforts in the Gulf coast region, it is far from clear at what levels the Department of Justice will be funded for FY2006 and even more uncertain as to which programs and activities will be given priority with regard to that funding.
Edward Byrne Memorial Justice Assistance Grant Program
On June 16, 2005, the House of Representatives passed H.R. 2862, FY2006 Appropriations for the Departments of Science, State, Justice, Commerce, and Related Agencies Act. The House version allocates $366 million for the Byrne-Justice Assistance Grant Program; this is $268 million less than was enacted for the program in FY05. The Senate’s version of the appropriations bill allocates $900 million for the program; a restoration of the FY2003 level of funding. The differences in the bill will need to be resolved in the conference committee and, as noted above, only the conferees for the Senate have been named. In response to the funding difference between the chambers, numerous members of the House and Senate have sent letters of support for the increased level of funding to both the House and Senate subcommittees responsible for the appropriations for the Department of Justice and the Edward Byrne Memorial Justice Assistance Grant program.
American Bar Association Proposed Standards for DNA Evidence
Because the ABA’s standards are so often referred to or cited in both the judiciary and legislature at both the federal and state levels, the National District Attorneys Association, through several of its board members, participates in the development of standards that impact the criminal justice system. In June of this year the ABA Task Force on Biological Evidence drafted a series of proposed standards on DNA evidence. This set of draft standards was reviewed and discussed by the NDAA Committee on Science and Technology at its annual meeting in July. Subsequently, President Paul Logli sent a letter outlining NDAA’s concerns to the ABA Criminal Justice Standards Committee, which reviewed the proposed standards during their September meeting.
Since the September meeting the ABA Standards Committee has made available a revised draft of the proposed standards that addresses several of the concerns expressed by NDAA via the president’s September 1 letter. For example:
- The draft initially provided for the inclusion in DNA databases of only those DNA profiles obtained from convicted persons. The revised draft now provides also for the inclusion of those profiles from persons found not guilty by reason by insanity and those persons who are found to have engaged in the commission of a crime that, but for their age, would have been considered an offense.
- The draft initially provided language that would have made it difficult to toll the statute of limitations when DNA evidence is profiled but the identity of the perpetrator is unknown. The September draft has deleted the “statute of limitations” standard and has drafted a new standard entitled “Charging Persons by DNA Profile” which permits prosecutors to charge an unknown perpetrator as identified by the DNA profile, commonly referred to as “John Doe” warrants.
These proposed standards are only drafts; the standards will progress through two readings by the Criminal Justice Section Council before being transmitted to the ABA House of Delegates. It is important to note that the revised drafts discussed above do not represent the policy of the ABA or the ABA Criminal Justice Section. While the draft standards are progressing, NDAA hopes to continue to provide the American Bar Association with the association’s comments and concerns.
1 The Iowa law was enacted on March 22, 2005.
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