Earlier this year, Rep. Daniel Donovan, R-N.Y., introduced a bill that would criminalize the mailing of tableting or encapsulating machines with only few exceptions, presumably to prevent their use in illegal drug manufacturing.
The basic function of a tableting machine is to compress powdered materials into solid tablets. These machines are often used by pharmaceutical companies, as well as illegal drug manufacturers, to make base materials easily consumable.
There’s just one slight problem: Mailing these machines in furtherance of a drug crime is already a felony under the Controlled Substances Act. There is no need for a second law to criminalize the same activity.
This is the second time Donovan has introduced a bill of this nature in an effort combat the manufacture of illegal substances. While he should certainly be applauded for recognizing the destructive impact these substances have on society, the bill exemplifies the rampant problem of overcriminalization in the United States.
Although well-meaning, Donovan’s bill is duplicative and unnecessarily adds to the ever-growing list of federal crimes. More importantly, the bill is much more likely than its existing counterpart to criminalize innocent behavior without notice.
The Controlled Substances Act (21 U.S.C. § 843(a)) makes it unlawful for any person to knowingly or intentionally “manufacture, distribute, export, or import any … tableting machine, encapsulating machine … or any equipment … which may be used to manufacture a controlled substance … [while] knowing, intending, or having reasonable cause to believe, that it will be used to manufacture a controlled substance.”
Like Donovan’s proposed bill, the Controlled Substances Act already explicitly prohibits—as a separate offense—utilizing the mail to commit or facilitate the commission of certain felony acts. This would include the illegal manufacture of controlled substances with tableting machines.
There is no readily apparent loophole to this law, and the federal government already successfully prosecutes offenders for importing tableting machines and possessing them in furtherance of illegal drug operations.
The most concerning aspect of this bill is not that it seeks to criminalize already criminal actions, but that it sweeps innocuous behavior under its broad scope by removing any element of criminal intent.
Unlike the existing statute, Donovan’s bill does not distinguish between mailing tableting machines for a criminal purpose and mailing them for legitimate usage. If a person attempts to mail any machine that can turn powder into a singular tablet, that person is guilty of a federal offense.
This is problematic, as tableting machines have many legitimate uses unrelated to the manufacture of controlled substances. Ferenc Mohos dedicates an entire chapter of his book, “Confectionery and Chocolate Engineering: Principles and Applications,” to explaining the uses of tableting machines for confectioners.
Similarly, in the “Handbook of Powder Science and Technology,” Mohammed Fayed and Lamber Otten offer lengthy discussions on how artisans and metal workers often utilize these tablet presses to turn ceramic or metal powder into more usable materials.
The mailing of these machines for these purposes is not excluded under the language of Donovan’s bill, nor are manual antique presses that one might easily buy as a collectible.
The concept of mens rea is fundamental to Western legal theory. It generally connects an illegal action with actual intent to commit a crime—in other words, it insists that a person must have a “guilty mind” before he or she can be punished for a “guilty act.”
Further, the Supreme Court, in Rogers v. Tennessee (2001), stated unequivocally that “core due process concepts of notice, foreseeability, and, in particular, the right to fair warning … bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct.”
In short, laws ought not punish those who engage in morally blameless conduct without any intent to violate the law or cause harm.
The Controlled Substances Act correctly links the action of mailing tableting machines to the intent of using the machine for the obvious social harm of manufacturing controlled substances.
Very few would argue that a person mailing a tableting machine for such a purpose would not know this conduct was prohibited.
Donovan’s bill, however, makes mailing these machines a crime without any evidence the person intended to use the machine in furtherance of illegal activity. Separating the punishment of mailing tableting machines from their use in drug crime makes it all too easy to prosecute people who mail them with no malicious intent.
This is precisely the situation that turns otherwise law-abiding citizens into criminals for engaging in otherwise innocent conduct.
The illegal manufacture and distribution of controlled substances is clearly a problem in need of workable solutions. This bill, however well-intentioned, criminalizes conduct entirely unrelated to the problem it seeks to address, and adds no solution that is not already enshrined in law.
The fight against legitimate social ills should not overly risk punishing morally blameless or socially productive behavior. Unfortunately, Donovan’s bill does just that.
