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The scales of justice are broken

In Massachusetts, drug trafficking is defined as possessing a certain quantity of a controlled substance with the intent to distribute it.1 The penalties for trafficking are graduated and depend both on the type and weight of the substance.2 The weight of the substance is measured by including the entire mixture that contains the controlled substance, regardless of the purity of the mixture.3

For example, a person who possesses a mixture of five grams of cocaine and nine grams of baking power is just as criminally liable as a person who possesses 14 grams of pure cocaine. While this method of measurement is logical for most controlled substances, it is irrational, and arguably unconstitutional, for oxycodone.

Part I: Oxycodone and the Massachusetts Drug Trafficking Statute

Oxycodone is an analgesic used in the treatment and management of pain.4 The criminal market for oxycodone is supplied by the diversion of prescription pain medication created and manufactured lawfully by pharmaceutical companies.5

Different pharmaceutical companies have developed pills that contain oxycodone, but there is a large variety among them. Pills vary in the amounts of oxycodone, active ingredients and inert substances they contain.6 They vary in their shapes and sizes, colors and coatings, markings and scorings.7 They vary in their availability and their popularity. Despite these differences, however, there is one thing they have in common: All are classified (and distinguished) by the amount of oxycodone they contain.

OxyContin was developed and patented by Purdue Pharma in 1996.8 OxyContin can come in strengths of 10, 15, 20, 30, 40, 60, 80 and 160 milligrams of oxycodone.9 In the "street market," OxyContin is bought and sold by the amount of oxycodone contained in each tablet.10 The amount of oxycodone in each tablet of OxyContin is readily apparent as each tablet has the letters "OC" on one side and the milligrams of oxycodone inscribed on the other.11

Additionally, the pills have different colors depending on the amount of oxycodone they contain.12 A dealer, potential customer or law enforcement official can easily determine the amount (and corresponding price) of oxycodone in an OxyContin pill by simply examining one with the naked eye. There are no scales, chemical tests or other instruments necessary to determine the amount of oxycodone in an OxyContin pill.

In addition to the controlled substance oxycodone, the 80-milligram OxyContin, for example, contains many "uncontrolled," so-called "inert," substances, some of which are commonly found in food and other household products, including: ammonio methacrylate copolymer, hypromellose, lactose, magnesium stearate, polyethylene glycol 400, providone, sodium hydroxide, sorbic acid, stearyl alcohol, talc, titanium dioxide, triacetin, FD&C blue No. 2, hydroxypropyl cellulose, and yellow iron oxide.13

Because of these inert substances, the approximate weight of one 80-milligram OxyContin tablet is 269 milligrams.14 Accordingly, oxycodone comprises only 30 percent of an 80-milligram OxyContin pill. Neither the weight of a single tablet nor their aggregate weight is listed anywhere on the tablets themselves, the pill bottle, prescribing information, patient information or on the website of the manufacturer, Purdue Pharma.15 In other words, the total weight of an OxyContin tablet is neither accessible nor is it useful or relevant in the manufacturing, prescribing or selling of the product.

Other pills containing oxycodone come in various forms. For examples, a "Combunox" tablet contains 5 milligrams of oxycodone and 400 milligrams of ibuprofen.16 Percocets contain a combination of oxycodone and acetaminophen, one combination having 10 milligrams of oxycodone and 650 milligrams of acetaminophen.17 Both Combunox and Percocet display the amount of oxycodone they contain on the tablets themselves,18 but neither pills' prescribing information nor patient information contains the total weight of a single tablet because it is not needed for any purpose.

The statute governing trafficking in oxycodone19states in relevant part as follows:

Any person who trafficks in … opium or any derivative thereof by knowingly or intentionally … possessing with intent to … distribute … a net weight of fourteen grams or more of … opium or any derivative thereof or a net weight of fourteen grams or more of any mixture containing … opium or any derivative thereof, shall … be punished…

The last time the Massachusetts Legislature amended the substance of the trafficking statute was on Jan. 14, 1993.20OxyContin was not developed until 1996.21 In other words, the Legislature could not have specifically considered OxyContin when drafting the trafficking statute because it did not exist. It is also very likely that even the substance oxycodone was never independently considered. Indeed, although the Legislature specifically named at least 86 different opium derivatives when classifying controlled substances, it does not ever mention oxycodone.22

Part II: Why oxycodone should be measured differently

A. Proportionality and the Federal Sentencing Commission

"Determining trafficking weight for oxycodone by calculating the weight of an entire pill leads to irrationally disproportionate results. As recognized by the Federal Sentencing Commission, there are two proportionality problems: one, because different medicines have different formulations and another because pills with identical weight can have different amounts of oxycodone."23

This realization by the Federal Sentencing Commission caused it, in 2003, to promulgate Amendment 657, which changed the method by which the Federal Sentencing Guidelines calculated the weight of oxycodone-based pills for the purpose of trafficking charges. Instead of calculating the entire mixture, or entire weight, of a pill containing oxycodone -- as does Massachusetts -- Amendment 657 requires that only the "actual" amount of oxycodone in any given mixture be counted.

In addition to enacting Amendment 657, the commission took the additional and remarkable step of applying it retroactively to persons who had been sentenced under the previous method of calculating the weight for pills containing oxycodone.24The commission member who sponsored the motion to apply the Amendment retroactively noted that it was the "strongest case for retroactivity he [had] seen as a commissioner."25 The basis for his motion, he stated, was "concerns of proportionality, fairness, and equity."26

As understood by the commission in passing the amendment unanimously and making it retroactive, it is not rational to use the weight of the pill to determine trafficking weight where a bigger size does not represent a greater danger.

Importantly, the weight of an OxyContin pill does not in any way correlate to the amount of oxycodone contained within it. For example, a tablet containing 20 mg of oxycodone weighs less than a tablet containing 15 mg;27 a tablet containing 40 mg of oxycodone weighs less than a tablet containing 30 mg or 15 mg;28 a tablet containing 60 mg of oxycodone weighs almost the same as a tablet containing 15 mg;29 and a tablet containing 80 mg of oxycodone weighs 70 mg more than a tablet containing 60 mg of oxycodone, even though there is only a 20 mg difference in strength.30 OxyContin is unlike other drugs, such as heroin and cocaine, for which weight is a meaningful distinguishing characteristic.

B. The street market 
for oxycodone

The market for OxyContin is entirely different from the markets for cocaine and heroin. Cocaine and heroin are both bought and sold by weight. Thus, a dealer of cocaine or heroin has a market incentive to dilute their product because more grams of product lead to more customers and more profit. The criminality of such an enterprise -- to maximize profit from selling more (albeit diluted) drugs to others -- is inherent in the penal scheme for cocaine and heroin, which provides for increasing mandatory punishments for these substances based on total weight.31

Therefore, as applied to cocaine and heroin, where the markets revolve around weight and where manipulation of the weight actually corresponds to increased sales and revenue, the trafficking statute is rational and serves important governmental interests.

However, the statute's calculation method is illogical with respect to OxyContin. Not only is tablet weight irrelevant to the OxyContin market, it is also something that cannot be controlled by the street dealer. OxyContin pills cannot be diluted to produce larger quantities of the drug to reach more people. OxyContin cannot be mixed with a cutting agent in order to cheat customers or make more profit. OxyContin does not need to be altered to be digestible. It can be consumed in the exact form in which it was obtained by the dealer.

In fact, a dealer of OxyContin has a strong incentive to sell the product exactly as it was manufactured in order to authenticate its potency. Therefore, the implied reasoning in the trafficking statute -- to punish people who deal in greater quantities of the harmful substance by aggregating mixture weight -- is inapposite to the circumstances of OxyContin.

C. Using aggregate weight makes enforcement of Oxycodone regulations more difficult

In the case of OxyContin, calibrating sentences according to tablet weight is much more difficult to administer than if it were done by the amount of oxycodone involved. An OxyContin tablet has its strength inscribed directly on it: A tablet containing 80 mg of oxycodone will have "80" written plainly on one side.32 Additionally, different strength tablets also have different colors, allowing them to be easily distinguished.33 A drug expert could visually examine a tablet and determine, from training and experience, that it is an 80 mg OxyContin pill.

Tablet weight, on the other hand, is more elusive. Determining accurate weight for oxycodone requires lab testing, and proving accurate weight requires testimony from a technician. With limited lab resources, in conjunction with the fact that tablet weight is irrelevant to the oxycodone market, it is irrational to use tablet weight to enforce the trafficking statute with respect to this drug.34

Part III: Solutions

A. The legislative fix

An amendment to the trafficking statute would be the easiest and most comprehensive way to address the fact that oxycodone is currently measured incorrectly in Massachusetts. Section 32E(c) would first have to include the words "except oxycodone" after the words "opium or any derivative thereof." Then, 32E(d) could be used to address trafficking in oxycodone specifically, stating that "[a]ny person who traffics in oxycodone by knowingly or intentionally manufacturing, distributing or dispensing or possessing with intent to manufacture, distribute or dispense or by bringing into the commonwealth a net weight of 14 grams or more of oxycodone … shall be punished … ."

Finally, the Legislature would then have to change the current 32(E)(d) to 32(E)(e). No further amendments would be necessary, though it would be wise for the Legislature to address the retroactivity question, as did the Federal Sentencing Commission.

B. Judicial fix

Until the Legislature takes action, however, it is incumbent upon defense attorneys to file motions to dismiss, motions for required findings and motions for appropriate jury instructions in these cases, arguing that the current trafficking statute is unconstitutional as applied to oxycodone. The manner in which the controlled substance is measured - by the weight of an entire pill rather than the amount of oxycodone in the pill - is not rationally related to the goals of the statute and thereby violates the defendant's right to substantive due process.35

Additionally, because of the disproportionate results it creates, the current statute violates a defendant's right to be free from cruel and/or unusual punishment.36 While it has not been deemed cruel or unusual to treat narcotics offenses with special severity, no case in Massachusetts has determined whether that same severity is still appropriate, and proportionate, to the situation where the defendant is being held accountable for more than what she reasonably can control. Street dealers of OxyContin cannot easily know, do not control and do not benefit from the weight added by Purdue Pharma. Those are essential differences between oxycodone and other drugs, such as cocaine, heroin and even LSD.

Additionally, using the current method of calculation, a person distributing less then 14 grams of actual oxycodone can be punished more harshly than a distributor of 14 grams of heroin or 28 grams of cocaine and is punished more harshly than someone prosecuted under federal law for the same crime. Therefore, as applied to oxycodone, the statute establishes a punishment scheme that is disproportionately cruel and unusual.

Conclusion

When drafting the trafficking statute, the Massachusetts Legislature never had the opportunity to consider the specifics of oxycodone. If it had, it would likely have reached the same conclusion as the Federal Sentencing Commission - that the only rational method of punishing offenses involving drugs that contain oxycodone is by calculating the amount of oxycodone present rather than the entire weight of the pills. The Legislature and the courts now have the opportunity to change the way oxycodone is measured. Such a change would finally balance the scales of justice.

Radha Natarajan has been a public defender with the Committee for Public Counsel Services for the last eight years. She has presented at numerous continuing legal education panels and received the MBA's 2011 Access to Justice Defender Award. She is an instructor at Boston University Law School's First Year Writing Program.

1M.G.L. c. 94C, § 32E (2011).

2Id.

3Id.

4See, e.g., U.S. Department of Justice, Drug Enforcement Administration, Office of Diversion Control, Drugs and Chemicals of Concern, Oxycodone, available at www.deadiversion.usdoj.gov/drugs_concern/oxycodone/summary.htm.

5See, e.g., National Drug Intelligence Center, OxyContin Diversion, Availability, and Abuse, available at www.justice.gov/ndic/pubs10/10550/10550p.pdf.

6Compare, e.g., Prescribing Information for OxyContin (hereinafter "OxyContin"), available at www.purduepharma.com/pi/prescription/oxycontin.pdf, at 2-3, with Patient Information for Combunox (hereinafter "Combunox"), available at www.frx.com/pi/Combunox_pi.pdf, with Prescribing Information for Percocet (hereinafter "Percocet"), available at www.endo.com/pdf/products/Percocet_pack_insert_2.pdf, at 1-2.

7Compare, e.g., OxyContin, supra note 6, at 27-28 (describing, for example, OxyContin 80 mg tablets as round, unscored, green-colored and convex and describing OxyContin 160 mg tablets as caplet-shaped, unscored, blue-colored and convex), with Combunox, supra note 6, at 2 (describing tablets as capsule-shaped, white to off-white and film-coated), with Percocet, supra note 6, at 16-17 (describing, for example, Percocet 2.5 mg tablets as pink and oval and describing Percocet 5 tablets as blue, round and bisected on one side).

8National Drug Intelligence Center, OxyContin Diversion and Abuse, available at www.justice.gov/ndic/pubs/651/651p.pdf, at 2.

9See OxyContin, supra note 6, at 1.

10See, e.g., OxyContin Diversion and Abuse, supra note 8, at 3 (cataloguing prices depending on milligrams of oxycodone).

11OxyContin, supra note 6, at 27-28.

12Id.

13Id. at 2-3.

14Weight provided to author in letter by Purdue Pharma on June 3, 2010.

15See OxyContin, supra note 6; OxyContin Product/Packaging Photos, available at www.purduepharma.com/pdfs/A8070-SS%20Reformulated%20OxyContin.pdf; see also www.purduepharma.com.

16Combunox, supra note 6, at 1.

17Percocet, supra note 6, at 1.

18Combunox, supra note 6, at 2; Percocet, supra note 6, at 16-17.

19M.G.L. c. 94C, § 32E(c) (2011).

20The history of M.G.L. c. 94C, § 32E, indicates that the last substantive amendment was made during the 1992 Legislative Session, though it was not approved until Jan. 14, 1993. See 1992 Mass. Adv. Leg. Service 396, §§ 1-3. The Legislature did amend the statute with respect to parole eligibility for certain offenses in 2010.

21OxyContin Diversion and Abuse, supra note 8, at 2.

22M.G.L. c. 94C, § 31.

23U.S.S.G., app. C, amend. 657.

24U.S.S.G. § 1B1.10(a).

25Statement of Vice Chair Castillo, U.S. Sentencing Commission, Minutes of Nov. 5, 2003 Public Meeting, attached Exhibit 12.

26Id.

27See Purdue Letter, supra note 3, at 2 (listing a 20 mg OxyContin pill as weighing 132 mg, whereas a 15 mg OxyContin pill weighs 198 mg).

28Id. (listing a 40 mg OxyContin pill as weighing 133 mg, whereas both the 30 mg and 15 mg OxyContin pills weigh 198 mg each).

29Id. (listing a 60 mg OxyContin pill as weighing 199.7 mg, where the 15 mg OxyContin weighs 198 mg).

30Id. (listing an 80 mg OxyContin pill as weighing 269 mg, where the 60 mg OxyContin pill weighs 199.7 mg).

31See, e.g., United States v. Berroa-Medrano, 303 F.3d 277, 284 (3rd Cir. 2002) ("[C]ommon cutting agents such as procaine and lidocaine are added to heroin specifically to facilitate its use by addicts - thereby improving its ingestibility - and to increase its profitability for dealers and distributors - thereby enhancing its marketability.").

OxyContin, supra note 6, at 27-28.

32Id.

34This is very different from the enforcement of other drugs, where aggregate weight makes administration easier, not more difficult. See, e.g., Chapman v. United States, 500 U.S. 453, 466-68 (1991) (finding that determining trafficking weight for LSD by aggregating the weight of the pure LSD with its carrier medium (e.g. blotter paper) was reasonable because of the nature of LSD and the fact that a typical dose weighed only 0.05 mg and that weighing it separately would require the extraction of an "infinitesimal" amount from a carrier medium).

35See, e.g., Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 268 (1992); see also Goodridge v. Department of Public Health, 440 Mass. 309, 330 (2003).

36United States Constitution, amend. VIII; Article 26 of the Massachusetts Declaration of Rights; see also, e.g., Lockyer v. Andrade, 538 U.S. 63, 72-73 (2003); McDonald v. Commonwealth, 173 Mass. 322, 328 (1899).

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