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by Peter Moskos

June 7, 2010

Goddamn pharmacist set me up!

Cops should not ask other people to commit crimes. Nor, legally, can they give you permission to do so. Certainly not for a felony. Seems pretty obvious to me.

Specifically this is about pharmacists filling out prescriptions they know to be bogus so drug addicts can then be arrested for the more serious crime of drug possession. To do so would be a crime.

Now if pharmacists really wanted to fight this fight for police, I suppose they could fill the prescription with sugar pills. Maybe that wouldn't be a crime (but might violate some professional code of ethics). But then police wouldn't get their drug possession charge.

And we wonder how the war on drugs corrupts society.

And then there's this numnut, a Florida professor "with more than 30 years of teaching future pharmacists." He says, "despite the fact it's technically illegal, the pharmacist's responsibility is to comply with the request of law enforcement."

"Technically illegal"? Could somebody please explain to me the difference between "technically illegal" and "illegal"?

At least we might get a good entrapment court case out of this. Those are my fav! Hopefully somebody will say, "Goddamn setup... I'll be goddamn... pharmacist set me up!"


Momma Fargo said...

Gotta love Florida professors. ACK!

Anonymous said...

Say a man comes to the police and says "I work as the night guard at a bank, and these guys I know from around my nabe want to break the safe. They'll pay me $50,000 if I turn off the cameras, disarm the alarm and let them in. They'll tie me up and make it seem like I was the victim of the heist. I'm coming to you because I want these thugs caught in the act and locked up."

You say: "Cops should not ask other people to commit crimes. Nor, legally, can they give you permission to do so. Certainly not for a felony. Seems pretty obvious to me."

So by your account, the cops should say "Sir, tell the bank heist crew you won't assist them. You can't, anyway; you'd be committting a felony. We can't give you permission to do that." Then the cops should high-five each other for preventing a bank heist.

Now that seems crazy. They should set up on the place, let the security guard commit several felonies, and then catch the crew on the way out of the bank. That is good policework.

Fact is, cops can indeed give people permission to commit felonies in the furtherance of an investigaiton. Happens every day. It is how we use confidential informants catch terrorists, and bank robbery crews, and yes, people presenting bogus perscritions to illegally obtain drugs.

The acts of these pharmacists are doing nothing to corrupt society; this is an accepted aspect of policework. You have a concern about the illegality of drugs in the first place, but you may be confusing this problem with the accepted ethics of what cops can do to investigate and make arrests for crimes in progress.

If a person comes to a pharmacist with a forged perscription, why is there some moral obligation to deny that person the opportunity to complete the crime he intends and charge him for it? Why would this be any different than the bank heist case?

Anonymous said...

...and as a side note, all that seals the deal in any of these cases is the district attorney's decision not to puruse an indictment: in the case of the security guard, or in the case of the pharmacist, as examples.

The DA has the power to decide who gets to commit felonies and who doesn't, and for what reasons. It seems to me that in the pharma case the local DA has decided not to seek indictments for pharmacists who fill bogus perscriptions in the furtherance of an investigation, and in the case of the bank hesit the cops would confer with a DA to ensure the same. The DA would most certainly assent.

PCM said...

I see your point. But there is a difference.

A guy saying people are going to rob bank... there hasn't actually been a crime yet (ignoring vague and impossible to convict conspiracy concepts). And he clearly doesn't want to rob the bank because he's telling the cops. Him turning off the alarm probably isn't a crime. Certainly not if he's doing so with the security of the bank in mind.

The guy working with the police is not robbing the bank.


A pharmacist who knowingly fills a false prescription is committing a state and federal felony. That *is* the crime.

Cops should not break the law nor encourage others to do so.

Give me another example where you think it's OK.

PCM said...

I got issues with extreme prosecutorial discretion, too. Who the hell said DAs decide what is legal? But that's a fight for another day.

Brandon said...

A guy and two of his buddies decide they want to blow up a day care center. One of them feels bad and goes to the police and becomes a CI. The CI and buddy #1 steal a car (felony #1). The CI and buddy #2 break into an explosives locker at a quarry site and steal dynamite (felony #2). They all make a car bomb (felony #3). The three of them break the lock on an abandoned warehouse to store the car overnight (felony #4). As the little kids are going to the day care, the three of them come back for the car bomb and are all arrested. The CI has committed four extremely serious felonies during the course of this investigation, will not be charged with anything, and has done his duty.

And for the bank guard, he has disabled an alarm, circumvented security measures, and acted as a direct participant in a bank heist. If he never went to the cops and was collared, he would indeed be collared for having robbed a bank. He just actually did so in this case as a CI, helping to rob it, under police supervision. The pharmacist has helped apprehend people which the law has deemed are a danger to themselve and others. This is what you disagree with, more so than the fact that the pharmacists are helping out as CIs for the police. You can't be said to have committed a felony if you aren't indicted for one because a DA has cleared you to help in certain ways as an informant in an investigation.

And none of this is entrapement, which is when a person is convinced by the police to commit a crime he otherwise would not have committed if not for the police intervention. These bogus scrip folks needed no additional convincing from anyone; they were compeltely intent on getting their bougs scrips filled wherever the could without any goading. They could try for an entrapment case; it would be fun to watch it briefly play out.

PCM said...

I'm also against giving CIs money to buy drugs with (not that you asked) If the goal is to reduce the illegal drug trade it seems basically counterproductive to support that market with taxpayer money. Talk about sending the wrong message!

There are certainly exceptions to what I'm about to say (terrorism comes to mind), but generally I think police wait far too long before making lockups. I don't like the idea that we're going for the "bigger fish."

And I think sometimes cops get so into watching and compiling evidence for a bigger case that they forget they're putting people in danger. The killing of Jean Charles de Menezes comes to mind--if they thought he was dangerous, why did they let him take a bus to the subway. Somebody needs to pull the (figurative) trigger!

You wouldn't let a drunk driver keep driving so you can nail him with more traffic violations. You wouldn't say, "I was waiting till he hurt somebody, because then I'll get a better arrest."

Or take the case of the Mob Cobs. According to Wikipidea (I can't vouch for the accuracy), US authorities recognized the two guys were mobsters back as far back as 1985. Two years later they framed an innocent man for murder. Why did nobody arrest these cops? Because they didn't want to mess of their investigation of mob. I don't think the "greater good" can be justified.

When cops see a felony, they should ask.

Anonymous said...

Thank god they have this discretion. It's as simple as this: the pharmacist doesn't have a culpable mental state when filling the scrips, which is a necessary component of any crime. Neither does the car bomb CI, who had a change of heart.

Since the pharamcist does not have a culpable mental state for filling the scrips, and the CI for his terror act, and this is made clear and convincing by their willingness to actively assist the police and prosecution, the DA not only can choose not to seek indictment, but also proably shouldn't.

How could a properly-instructed grand jury decide the phramacist had the mental state to commit the crime when he was acting out of assistance to law enforcement? How could a jury convict when the person's mental state comprised not of a desire to fill bad scrips per se, but to assist the police?

Therein lies the ability to allow the DA not to indict. What the pharmacist did simply wasn't a crime. You have the act, but not the mental state. Formerly, you seem to be applying a strict liability standard to these instances, wherein the simple act alone makes out the crime. This is not how these laws are written; they have the mental component as well.

PCM said...

I think it's dangerous to let the guys get to the point where they assemble a bomb. Why not lock them up with they steal the explosives? Certainly somebody can be put away for a long period of time.

And sidestepping your question a bit. But what if they keep putting off the bomb part for a while and just keep stealing cars. It's fun and they can make money. How long do you watch this car theft ring hoping, oh dear hoping, that they hurry up and get into the child killing business?

I know damn well that there is lots of gray in policing. I just think it's better to error on the side of making a quicker arrest.

PCM said...

What if it turns out the cops were bad cops trying to get drugs from the pharmacist?

The FBI comes in and locks them all up. You think the pharmacist alibi would work then?

In any other case the mens rea would be there in such a situation. Imagine a prosecuting lawyer having a field day, "did you know it was fake prescription? did you fill it with real drugs?" Again, the crime I'm talking about isn't aiding and abetting junkies. The crime, as written, is filling out a false prescription. Clearly doing so is intent. Whether or nor the cops tell you to or not.

And what if the DA changes his mind? What if the feds don't want to play this game and charge you federally? Regardless of the ethics, I would want better legal protection. No. I wouldn't do it.

Anonymous said...

There is always a balancing act between allowing people to get as close as possible to accomplishing their heinous goals so cops can make the best case possible and send the perps away for the longest, and not waiting so long that there is a genuine danger to the public. But none of that really factors in when it comes to fillings prescriptions.

PCM said...

It does if you're the one being asked to commit a felony and also violate your own code of professional ethics!

I also love how a lot of this comes to the fact that drugs aren't really that dangerous. So even if something goes wrong, it's not such a big deal.

Kind of begs the question why we're doing this at all.

And there's such an easy answer (I brought it up before): the pharmacist could give fake drugs. But then we couldn't charge the criminals with as serious a crime. It's crazy. Arrest the guys, charge them with what you got, and be done with it.

Anonymous said...

Well you don't feel comfortable doing it, but it seems to be working quite well. Pharmacists who feel a duty to protect the integity of their profession and to assist the police are helping to catch people who want to use bad scrips to illegally possess drugs.

And, to say it again, no fed or local prosector would touch the case. The pharmacist would say "I only filled the scrip under the supervision of the police and out of my duty to assist law enforcement" and, lacking the ability to establish a mens rea beyond reasonable doubt (or even make out the probable cause for one), nobody would indict and nobody would convict.

This is all a matter apart of whether the root laws against drugs are right or not, but at this level of the pharma assisting police, his ability to do so seems fairly clear.

Anonymous said...

To say it again, the pharmacists are not being asked to commit a felony, because they are not being asked to assume a culpable mental state.

They are only being asked to commit an act which would have otherwise been a felony, if for some reason they did indeed have a culpable mental state, which, by their very cooperation with the police, they do not have.

The confuision is what "committing a felony means," and you are looking only at the act, and not at what the pharma is thinking and feeling when he does it. This is half of what it takes to commit a felony, and it's not there.

PCM said...

That is a very selective view of culpable mental state.

So if I give a junkie CI $20 and tell him, "get out of here and go and buy your smack." And he does. Is that not a crime?

PCM said...

Why not just change the law to make it legal for pharmacists to fill bogus prescriptions to help the police?

I'm not against stings. I'm for the whole rule of law thing.

john harvard said...

You lot are overlooking the real issue: what will the licensing board do?

This is an action independent of any criminal prosecution. The licensing board may have way different motivations and priorities than any ADAs, AUSAs, or other prosecutors.

And more importantly for the pharmacist, none of those prosecutors has any juice with the licensing board.

So a wise and prudent pharmacist would just decline to even consider involvement in this whole mess.

We see this sort of thing all the time with state bar associations creating their own rules to keep prosecutors from engaging in certain types of investigative tactics. These rules even affect the ability of federal prosecutors to enforce federal law, since they need state bar cards. I never understood how this can stand under the Supremacy Clause, but perhaps no federal prosecutor has been willing to bet her livelihood to find out.

And of course, we hear all the time of cops losing their jobs and peace-officer certifications for conduct that did not rise to the level of a crime, or criminal conduct that could not be proven BRD in court.

I will also add a constructive suggestion: Detectives get a sealed court order or other legal paper to "take over" the pharmacy. Then the pharmacist is essentially being coerced and should have a good defense against any licensing action. Or you could even put a UC behind the counter in a white coat- he hands the "real" scrips to the "real" pharmacist, and fills the bad guy's scrip himself. Again, the pharm stays clean of any dodgy business.

lovinmyjob said...

o.k let me try to explain this to you. IT ISN'T A CRIME UNLESS A SALE IS MADE!!!!! It's like forging a check, I can write bogus checks all day long but its not a crime until its cashed or used to buy something. We cannot just fill it with "sugar pills" (aka placebos) because 1) they don't make them anymore 2) that would be misbranding which is a federal offence 3) if the perp has insurance it would be insurance fraud on our part and the list goes on. This is why I don't even bother call the police anymore when a get a bogus rx. Its always a hassle just getting them to understand the legality of the situation. I just send the person on their way with the usual "sorry I'm out of that med and it will take 3 days to get it in" routine. I've actually had 911 tell me to "take the person into custody" myself. Sorry, I don't carry a gun. Hope this was enlightening for you.

PCM said...


That is enlightening. Thank you.

But is presenting a forged prescription not some crime in and of itself?

So would you, as a pharmacist, be happy or willing to work with police on such a sting?

Stew said...
This comment has been removed by a blog administrator.
Anonymous said...

It was not the pharmacist that set you up, it was the cop. The cop shouldn't have broke the law by telling the pharmacist to fill what they both knew was a fake prescription. It is a clear case of police misconduct and the police officer should be reprimanded..