Since the Anti-Drug Abuse Act came into effect in the United States in 1986, the definition of "drug trafficking" in the courts has meandered considerably from the definition which the bill's sponsors had in mind.
This legislation requires courts to imprison everyone who is convicted of drug trafficking for minimum sentences which tend to comprise five to ten years. But prosecutors are able, according to the statute, to require these sentences even for unsystematic and non-violent crimes, and even as an alternative to treatment.
In the state of Iowa, even the possession of 5 grams of meth leads to a 5-year minimum sentence ("unless," the Governor's Office of Drug Control Policy recommends, "the defendant pleads guilty and/or cooperates with the prosecution of other defendants.").* On the federal level, crimes involving 5 g of crack cocaine or 500 g of powder cocaine roughly result in the same sentence; 50 g/5kg in the 10-year sentence.**
* Methamphetamine is an unusual case; other controlled substances, e.g. heroin and cocaine, may be met by milder sentencing where, for example, a first offense occurs. Marijuana, K2 ('synthetic cannabis'), and controlled Schedule IV medicines like diazepam are exempted from any mandatory minimum.
** "Report to the Congress: Cocaine and Federal Sentencing Policy," p. 5. Until the Fair Sentencing Act of 2010, the simple possession of 5 grams of crack cocaine was also punished with a 5-year minimum mandatory sentence. Having even an enormous amount of any other drug except Rohypnol would lead to a year's imprisonment at most. Since there was a racist element to the sentencing (in 2006 81.8% of crack cocaine offenders were African American [p. 15]) it became an urgent issue; a sentencing disparity of 18-to-1 still exists.
"DRUG trafficking," according to a critical article on the American Civil Liberties Union's website, presently covers furnishing a methamphetamine dealer with a cold medicine (pseudoephedrine) which is used to make the drug, being a middleman, or picking up drugs for a friend. By contrast, Senator and co-sponsor Robert Byrd had wanted the law to target crime bosses and dealers higher in the hierarchy.
In a 2002 report the United States Sentencing Commission had formulated the principle:
(3) enhanced sentences generally should be imposed on a defendant who, in the course of a drug offense –*Report to the Congress: Cocaine and Federal Sentencing Policy, p. 7
(i) murders or causes serious bodily injury to an individual;
(ii) uses a dangerous weapon (including a firearm);
(iii) involves a juvenile or a woman who the defendant knows or should know to be pregnant;
(iv) engages in a continuing criminal enterprise or commits other criminal offenses in order to facilitate the defendant's drug trafficking activities;
(v) knows, or should know, that the defendant is involving an unusually vulnerable victim;
(vi) restrains a victim;
(vii) distributes cocaine within 500 feet of a school;
(viii) obstructs justice;
(ix) has a significant prior criminal record;
(x) is an organizer or leader of drug trafficking activities involving five or more persons.*
Also,
The Subcommittee on Crime of the House Committee on the Judiciary generally defined serious traffickers as "managers of the retail traffic, the person who is filling the bags of heroin, packaging crack cocaine into vials . . . and doing so in substantial street quantities" and major traffickers as "manufacturers or the heads of organizations who are responsible for creating and delivering very large quantities."**Report to the Congress: Cocaine and Federal Sentencing Policy, p.8
MELISSA Harris-Perry of the television channel MSNBC commented during a roundtable discussion on her show on November 18th that there has been no proof, in any case, that mandatory minimum sentencing has any effect on crime rates.
It has however been proven to exacerbate imprisonment rates, correctional institutes' overcrowding (the population in federal prisons is now three times what it was in 1986, fed by the influx of drug offenders on mandatory sentences), costs, injustice in that the prosecution is felt to be disproportionate to the offense, and indirect and broader problems like broken families, cyclical criminality and poverty. The prisoner may also be forced to serve his sentence in a far harsher way than was ever intended; for instance, young prisoners are sometimes put in solitary confinement as a method of shielding them from older fellow inmates. Solitary confinement is generally increasingly used, also for suicide risks and many other problems; and one factor which arguably contributes to its popularity is overcrowding.
Illustration: Statue of Themis in the Central Statue Square, at the Legislative Council Building, in Hong Kong.
Photo by ChvhLR10, via Wikimedia Commons. (CC BY-SA 3.0) Licence.
*
MICHIGAN and New York State have eschewed these minimum sentences in their own courts.
It was in New York State where the Rockefeller Drug Laws were enacted in 1973. Under these laws, the conviction of selling, for instance, 60 grams of marijuana led to a fifteen years' minimum prison sentence. These remedies were copied for future drug laws like the Anti-Drug Abuse Act, and they revived (as far as I have gathered) the mandatory minimum sentences which had been removed from federal law three years earlier.
But in the very state where these laws were promulgated, the Drug Law Reform Act of 2004 promoted milder mandatory sentencing; in 2009 Governor David Paterson declared "I can't think of a criminal justice strategy that has been more unsuccessful than the Rockefeller drug laws"; and in the same year the mandatory minimum sentences were removed entirely.
In 2003, Michigan also dropped the mandatory minimum. As in New York State, a fiscal motivation helped legislators to support it; it was considered too expensive to imprison people who could be sent into treatment or released entirely instead. An Associated Press article at the time pointed out the relative severity of drug sentences: a woman who planned a drug deal in a sting operation was sentenced to 20 years, and according to her sister even saw murder convicts released before her. A prosecutor quoted in the article said, "The idea of stiff severe penalties for drug kingpins was a problem because we weren't getting those kingpins. We were getting people who were carrying on behalf of kingpins."
In both states the crime rate has continued to decline* since the law was changed. The imprisonment rates are steadily changing. From 2008 to 2011, the number of people admitted to prison in New York State on drug convictions decreased from 5,190 to 3,513; at the same time, people could still be held to serve a sentence in a local jail. The number of drug dealers, etc., who were already in prison fell from 11,936 to 7,509. Outside of the prison system, the arrests for drug felonies in the state have dropped from 40,361 in 2008 to 31,421 in 2011.
* There are many possible real or fictitious factors. In New York City, for instance, this decline may be exaggerated due to suppression of statistics by the higher echelons of the New York City Police Department. The number of 'index' crimes did fall abruptly from 198,419 in 2008 to 188,357 in 2009, but has increased again to 191,666 in 2011.
Of course the law governing drugs remains unequal even apart from the mandatory minimum sentences. Arrest rates for crimes as minor as marijuana possession are already disparate, for instance. In New York City: "Even though survey research shows that marijuana use is actually slightly higher among white youths than their minority counterparts, Blacks and Hispanics are being targeted in more than four-fifths of the misdemeanor marijuana arrests."*
* "Review: The City That Became Safe: New York's Lessons for Urban Crime and Its Control"
Tip of the hat to ACLU on Twitter.
"The Reality of Federal Drug Sentencing" [American Civil Liberties Union], by Alex Stamm (November 27, 2012) [Read November 29, 2012]
"Albany Reaches Deal to Repeal '70s Drug Laws" [New York Times], by Jeremy W. Peters (March 25, 2009) [Read November 30, 2012]
"Melissa Harris-Perry: Californians vote to reform harsh three strikes law" [MSNBC] (November 18, 2012) (From the 1:06 time mark.)
Rockefeller Drug Laws [Wikipedia]
"Proposed Penalties for K2, and Bath Salts (HDPV/Mephedrone), Salvia Divinorum; Actual Penalties for Other Controlled Substances" [Iowa: Governor's Office of Drug Control Policy] (PDF), 2011.
"Review: The City That Became Safe: New York's Lessons for Urban Crime and Its Control" [Rutgers: Criminal Law and Criminal Justice Books], by Richard Allinson. Book by Franklin E. Zimring (New York: Oxford University Press, 2012.). March 2012.
Report to the Congress: Cocaine and Federal Sentencing Policy [United States Sentencing Commission] (PDF) May 2007
"Fair Sentencing Act" [Wikipedia]
"Annual Report, 2010" [Michigan Department of Corrections] (PDF) (June 25, 2012)
"Michigan to Drop Minimum Sentence Rules for Drug Crimes" [New York Times], by the Associated Press. (December 26, 2002)
"2009 Drug Law Changes: June 2012 Update" [Division of Criminal Justice Services — New York State] (PDF). August 1, 2012.
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