Smurfing Bad: An OC Judge Shows Mercy On Mini Meth-Makers
The sight of Blanca Bolanos and Concepcion Climaco cruising around Orange County in a maroon Chevy Astro van, making frequent stops at various Wal-Mart, CVS and Target stores, doesn't bring to mind the menacing image of methamphetamine traffickers that pervades popular culture. Both grandmothers are slight and somewhat frail, both devoutly religious. It's likely neither really knows a whole lot about crank, glass or speed.
But for about three years, Bolanos scratched out a meager income by roving from pharmacy to pharmacy, slowly accumulating roughly 3 kilograms of pseudoephedrine, a legal decongestant that is an essential ingredient when cooking what a National Geographic documentary called "The World's Most Dangerous Drug."
On a typical day, sometimes with Climaco riding shotgun, Bolanos could hit more than a dozen stores, purchasing from each a box or two of Sudafed or Claritin D—never more than 3.6 grams—after presenting a genuine photo ID. She would later resell the pills at a three-time markup—roughly $10 earned per box. Authorities say Bolanos bought pseudoephedrine around 1,500 times between 2008 and 2011 in California and Nevada.
In meth lingo, the practice of buying proscribed amounts of a legal precursor chemical through numerous small purchases is called "smurfing." It's grunt work, yielding little profit and directly exposing practitioners to legal scrutiny. And while smurfing might not sound like the day-to-day activity of a major player in the drug business, after Bolanos pleaded guilty to distributing pseudoephedrine, federal prosecutors asked the judge to put her in prison long enough to make you wonder.
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Assistant U.S. Attorney Charles Pell wasn't exactly overreaching when he requested District Judge James Selna sentence the first-time offender to more than 17 years in federal prison. Pell was just following guidelines that have been repeatedly tweaked by Congress, guidelines formed by circumventing the typical process of determining appropriate drug punishments. Guidelines Selna acknowledged at Bolanos' sentence hearing in Santa Ana on June 24, then squarely rejected. (In 2005, the Supreme Court decided sentencing guidelines are not mandatory.) "The disproportionality is obvious, particularly when compared to the drug offenses," Selna wrote in a sentencing memorandum, noting that even by his more lenient calculation, the advisory period of incarceration was the same as for someone who sold 3 kilograms of heroin or conspired to commit murder.
Selna instead ordered Bolanos to prison for 52 months. A week later, he slapped Climaco, 61, who purchased allergy medicine 220 times at a profit of $4 per box, with 15 months of incarceration.
It's hard to argue smurfers are anything but bit players in the meth trade. Yet the law advised Selna to impose upon Bolanos a punishment comparable to that of a major trafficker—perhaps a de facto life sentence given her poor health. That's before likely deportation to Mexico, a country the impoverished 58-year-old left 40 years ago.
Assigning moral culpability to participants in the drug trade can be tricky; laws must mete out punishment based on a defendant's position in the criminal hierarchy, the methods they employed, and the amount and nature of the illicit substances they distributed. To that end, the U.S. Sentencing Commission, a panel of criminal justice experts, is charged with carefully weighing many factors to establish punishments appropriate to the form and severity of the crime. But as Selna wrote, the "guidelines do not reflect the usual work of the Sentencing Commission, which concentrates on empirical evidence, but rather result from Congressional mandates."
A series of increasingly tough laws have ramped up sentences for pseudoephedrine buyers while empowering regulatory mechanisms that monitor sales. First, the Comprehensive Methamphetamine Control Act of 1996 raised guidelines for precursor chemicals. Then the Methamphetamine Anti-proliferation Act of 2000 tied the punishment for pseudoephedrine to the total amount of methamphetamine that can be produced with it. The Combat Methamphetamine Epidemic Act of 2005, an amendment to the renewed Patriot Act, implemented purchasing limits and a rigorous monitoring system.
The laws were in response to the recognized dangers of clandestine meth labs and the violence associated with the drug's producers. To combat those problems, legislators attacked the source, attempting to control the over-the-counter medication that, with a little chemistry, can be turned into one of the most addictive and problematic drugs on the market.
As with a similar controversy regarding the disparity in how the law treats crack vs. powder cocaine, legal experts say methamphetamine laws discriminate against the most defenseless—and least culpable—offenders. Katherine Corrigan, president of the Orange County Criminal Bar Association, says smurfers are on the lowest rung of the totem pole—usually uneducated and financially desperate, often ignorant of the true nature of their crime, sometimes preyed upon by manufacturers.
Corrigan represented Climaco, whom she describes as a pious woman who is terribly ashamed of her actions. Corrigan says the Bar has been concerned about "pseudoephedrine guidelines that are so overly excessive it's preposterous"—laws that, she says, are disproportionally invoked against the poor and vulnerable.
Around the same period the defendants were illicitly buying decongestants, the nation's largest corporate pharmacy ran afoul of the same statute. But unlike Bolanos and Climaco, no employees or executives of CVS Pharmacy Inc. found themselves facing criminal prosecution. In October 2010, CVS made a deal with the same U.S. Attorney's Office, resolving a criminal investigation launched after several people were caught with large quantities of pseudoephedrine bought at its stores in California and Nevada.
CVS had implemented a flawed system to perform electronic monitoring required by the Combat Methamphetamine Epidemic Act—one exploited by smurfers. According to the non-prosecution agreement, senior CVS managers knew their MethCheck monitoring system wasn't working when, in late 2007 and 2008, sales of regulated decongestants boomed. Employees at some stores were also knowingly overselling the allergy products. Company officials acknowledged CVS sold excessive pseudoephedrine to criminals manufacturing methamphetamine, paid a $75 million fine and forfeited $2.6 million in profits. The agreement also mandated CVS fix its monitoring system, which links to the same database that flagged Bolanos.
On March 16, 2011, members of the Orange County Proactive Methamphetamine Laboratory Investigatory Task Force followed Bolanos on a shopping spree that started from her home in Lynwood and ended that afternoon when Chula Vista police officers pulled her over in San Diego County, ostensibly for a cracked windshield, searched her van, explained all the allergy medication she had was illegal, then let her go.
Bolanos probably should have been more suspicious, but instead, on April 21, she picked up Climaco, and the pair went pharmacy hopping across Buena Park, Anaheim and Cerritos. When they were arrested later that day, the van held 90 grams of pseudoephedrine.
Bolanos told DEA agents she was struggling to raise money for her daughter's quinceañera celebration. She said when her mother died a few years earlier, she lost her caretaker income, and her catering and cosmetic businesses were failing. She later told Judge Selna she had been a victim of abuse for much of her life, first from her father, then her husband.
Selna joins a chorus of jurists questioning whether Congress is pushing them to deal with people such as Bolanos too harshly. Judge Mark Gennett of the Northern District of Iowa, where methamphetamine cases account for 78 percent of his drug docket, lamented in The Nation magazine that federal law has forced him to send more than 1,000 nonviolent drug offenders to prison. In his article, Gennett described smurfers as "the low-hanging fruit of the drug war."
A federal judge in New York, John Gleeson, took aim at drug laws in a recent memorandum. "The flaw is simply stated: the guideline ranges for drug-trafficking offenses are not based on empirical data, commission expertise, or the actual culpability of defendants," he wrote. "If they were, they would be much less severe, and judges would respect them more."
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