Former FBI staffer argues that we cannot deter drug counterfeiters without harsher penalties

Thomas Kubic speaking at PSM's 2014 Interchange.

This editorial by Thomas Kubic was published in The Hill on June 7, 2018. Thomas T. Kubic was deputy assistant director of the Federal Bureau of Investigation (FBI) and is currently president of the Pharmaceutical Security Institute. He is also a former board member of The Partnership for Safe Medicines.

To discourage illegal drug importation — give punishments that fit the crimes

A federal judge in Montana recently handed down a sentence to Canada Drugs, an online pharmacy that has been selling fake medicines, counterfeit, misbranded and unapproved, to unsuspecting Americans.

Overseen by its pharmacist founder, the company engaged in this illegal activity for more than 17 years and likely contributed to the deaths of highly-vulnerable patients. The judge’s sentence? Canada Drugs will pay a nominal fine, promise to stop selling drugs in the U.S., and return some of its ill-gotten proceeds. No jail time for the company’s founder either.

As policymakers and industry leaders search for solutions to address our nation’s opioid crisis, we are overlooking one of the greatest tools at our disposal: imposing the strong deterrents necessary to thwart criminal operations.

For some, getting caught, paying a fine, and maybe getting probation are viewed as the cost of doing business. The simple fact is that these crooks know the financial rewards far outweigh the risks of incarceration.

In another recent case, controlled substances and unapproved drugs from India were mailed to patients in the U.S. for over 18 months. The two men behind the operation made thousands of phone calls to unsuspecting Americans.

An undercover law enforcement officer purchased drugs from the two defendants on multiple occasions. Evidence related to the operation was assiduously gathered over that period of time. Ultimately, the case was plead out last November, as the two defendants were released on time served and they forfeited $30,000.

Unfortunately, the clear message is that the penalties are weak if even caught. How can we change their perception? The answer is straightforward: It’s deterrence theory based on old-fashioned crime and punishment. If you do the crime — you’ll do the time.

For foreign-based criminals, deterrence can bring a level of certainty to those involved or thinking about getting involved in the counterfeit and illegal prescription drug trade.

It boils down to this, if an entity — be it an organization or person — opts to engage in activities involving illegal distribution chains, there should be consequences, often certain, swift, and overwhelmingly punitive.

The penalties need to involve longer sentences and harsher fines. We need such a watershed philosophy carried into the practice of prosecuting those involved with illegal and dangerous drug distribution networks.

The message needs to get out not just among those currently involved in the distribution or use of illegal fentanyl, but, more importantly, to those tempted by the lure of illegal profits. As long as the jail time and the fines do not seem severe, they will continue trafficking in unsafe medicines.

From my 30 years as a FBI agent, I know that our federal laws are comprehensive, covering introduction of misbranded drugs into interstate commerce, smuggling goods into the U.S., distribution of controlled substances, and conspiracy to commit offense or to defraud the U.S.

We must avoid any inclination to change them — particularly by relaxing the existing ban on drug importation. Instead, we should demand stronger penalties in these cases.

This will have multiple benefits in the form of reduced crime, staunching of this widespread epidemic, and putting fewer Americans at risk. Additionally, as investigators in the FBI, DEA and other federal and state law enforcement agencies work 24-7 to track down these criminals, morale among those on the front lines would undoubtedly increase.

Bottom line: the punishment must always fit the crime. Without stronger penalties, those dealing in illegal medications will not feel dissuaded, and Americans will continue to lose their lives. With fentanyl and other illegal substances spreading to communities across the country, we simply don’t have the luxury of time to get this right.