In Print: Volume 88: Number 4
Shake and Bake: The Meth Threat and the Need to Rethink 21 U.S.C. § 841(c)(2)
By Raphael S. Nemes
88 Wash. U. L. Rev. 993 (2011)
(PDF)
21 U.S.C. § 841(c)(2) (the “pseudoephedrine statute”) imposes a prison term of up to twenty years for any person who “distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance.” Federal courts of appeals have spent the last decade deciphering how to interpret the statutory phrase “reasonable cause to believe,” specifically in cases involving the sale of pseudoephedrine by pharmacy or convenience store workers that ends up in the hands of methamphetamine producers. Some circuit decisions have analyzed the phrase in question using a subjective test, looking “through the lens of [a] particular defendant” to determine whether he had reasonable cause to believe that a sale of pseudoephedrine would lead to methamphetamine production; others decry such an analysis as “redundant” and instead use “an objective mens rea requirement.”
This Note examines the pseudoephedrine statute and discusses whether a circuit split regarding its wording, as well as changing methods of methamphetamine production, warrants a rewriting of the statute. Due to improved efficiency in methamphetamine production methods and a growing domestic production market, pharmacy and convenience store workers are increasingly at risk of serving customers who purchase pseudoephedrine for methamphetamine production. Depending on which federal circuit court(s) can claim jurisdiction over such sales of pseudoephedrine, cases with similar facts may end up with very dissimilar outcomes as a result of circuits interpreting the scienter standard of the pseudoephedrine statute differently.
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