QuestionCan you go to jail for selling fake drugs?
Hopes&Fears answers questions with the help of people who know what they're talking about. Today, we discuss a suspicious plot line from 'Orange is the New Black.'
In the much-beloved Netflix series Orange is the New Black, it's revealed that Marisol "Flaca" Gonzalez is serving time due to a classmate committing suicide after taking LSD that Gonzalez sold to him. The catch? The LSD was fake; Gonzalez had been gaming her high school with blotting paper she had printed off the internet and sprayed with water.
According to the series, Gonzalez was found guilty of fraud and endangerment. But Hopes&Fears couldn't help but wonder: can you really serve time for selling fake drugs? Could you actually be guilty of fraud if your customer was trying to purchase an illicit substance? We look to attorney Gregg Pinto for answers.
Note: The information contained herein is for informational purposes only as a service to the public, and is not legal advice or a substitute for legal counsel.
Attorney at Law, Pinto Law Offices
The quick and easy response is that in New York you cannot be charged with any Controlled Substance crimes (possession or sale of a controlled substance) if the drugs are fake. Quite simply, if you have "fake" drugs, then they aren't "controlled substances." There is no law against possessing baking soda or any other legal substance. [If fake drugs were found on your person], you would be arrested, but the case would be dismissed once the lab report showed that the substance was not a 'controlled substance.'
As far as the fraud question, I think the only scenario where this could come into play would be if the dealer was selling to an undercover officer. I believe it is possible to be charged with some degree of Grand Larceny if the facts merited that charge, but it is much more likely [that you would] be charged with Conspiracy, which is a crime all on its own in New York. At its most basic level, Conspiracy is entering into an agreement with another person to commit a crime and taking an overt act in furtherance of the agreement. The fact that the drugs are fake is not a defense to Conspiracy since you still agreed to commit the crime and (presumably) took some overt act in furtherance of that crime. All the government would need to show in that instance is that the dealer agreed to participate in a drug transaction and took some 'overt act' in furtherance of the agreement.
DEA Domestic Drug Seizures (2014)
Cocaine: 33,770 kgs
War on Drugs
→ Number of people arrested in 2013 in the U.S. on nonviolent drug charges: 1.5 million
→ Amount spent annually in the U.S. on the war on drugs: More than $51,000,000,000
COVER Illustartion: Julia Goldman