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.
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