Transforming Drug Laws in the United States: From Retributive to Restorative Justice

 

The Crime

Federal and state drug possession laws make it a crime to willfully possess illegal controlled substances such as marijuana, methamphetamine, cocaine, LSD, "club drugs," and heroin. These laws also criminalize the possession of "precursor" chemicals used in drug cultivation and manufacturing, as well as certain accessories related to drug use. Drug possession laws vary according to drug type, amount, and geographic area of the offense. Possession of small quantities may be deemed "simple" possession, while possession of large amounts may result in a charge of presumed "possession with intent to distribute."  (Drug Possession as defined by the Criminal Law Center)

The Punishment

Under the United States Code: Title 21. Food and Drugs, each subsection contains penalty regulations and minimum sentences for offenses of particular sizes and types.  The drugs themselves are divided into subsections referenced below.  Here are three examples from the Federal Code:

1. Section 844a. Civil penalty for possession of small amounts of certain controlled substances

In general
Any individual who knowingly possesses a controlled substance
that is listed in section 841(b)(1)(A) of this title in violation
of section 844 of this title in an amount that, as specified by
regulation of the Attorney General, is a personal use amount shall
be liable to the United States for a civil penalty in an amount not
to exceed $10,000 for each such violation.

2. Section 844. Penalties for simple possession

...Any person who violates this subsection may be sentenced to a term of
imprisonment of not more than 1 year, and shall be fined a minimum
of $1,000, or both, except that if he commits such offense after a
prior conviction under this subchapter or subchapter II of this
chapter, or a prior conviction for any drug, narcotic, or chemical
offense chargeable under the law of any State, has become final, he
shall be sentenced to a term of imprisonment for not less than 15
days but not more than 2 years, and shall be fined a minimum of
$2,500, except, further, that if he commits such offense after two
or more prior convictions under this subchapter or subchapter II of
this chapter, or two or more prior convictions for any drug,
narcotic, or chemical offense chargeable under the law of any
State, or a combination of two or more such offenses have become
final, he shall be sentenced to a term of imprisonment for not less
than 90 days but not more than 3 years, and shall be fined a
minimum of $5,000. Notwithstanding the preceding sentence, a person
convicted under this subsection for the possession of a mixture or
substance which contains cocaine base shall be imprisoned not less
than 5 years and not more than 20 years, and fined a minimum of
$1,000, if the conviction is a first conviction under this
subsection and the amount of the mixture or substance exceeds 5
grams, if the conviction is after a prior conviction for the
possession of such a mixture or substance under this subsection
becomes final and the amount of the mixture or substance exceeds 3
grams, or if the conviction is after 2 or more prior convictions
for the possession of such a mixture or substance under this
subsection become final and the amount of the mixture or substance
exceeds 1 gram.

3. Section 841. Prohibited acts A
...person shall be sentenced to a term of imprisonment which may
not be less than 10 years or more than life and if death or serious
bodily injury results from the use of such substance shall be not
less than 20 years or more than life, a fine not to exceed the
greater of that authorized in accordance with the provisions of
title 18 or $4,000,000 if the defendant is an individual or
$10,000,000 if the defendant is other than an individual, or both.
If any person commits such a violation after a prior conviction for
a felony drug offense has become final, such person shall be
sentenced to a term of imprisonment which may not be less than 20
years and not more than life imprisonment and if death or serious
bodily injury results from the use of such substance shall be
sentenced to life imprisonment, a fine not to exceed the greater of
twice that authorized in accordance with the provisions of title 18
or $8,000,000 if the defendant is an individual or $20,000,000 if
the defendant is other than an individual, or both. If any person
commits a violation of this subparagraph or of section 849, 859,
860, or 861 of this title after two or more prior convictions for a
felony drug offense have become final, such person shall be
sentenced to a mandatory term of life imprisonment without release
and fined in accordance with the preceding sentence.



The History

For years, criminals, lawyers and all those involved complained that the sentencing of drug criminals was entirely unfair. Judges across the United States of America were giving out a wide array of sentences for the same crime. In 1984, Congress passed the Sentencing Reform Act to establish minimum and maximum mandatory sentences in order to establish a more unified system. More specifically, it created the US Sentencing Commission, the group in-charge with establishing these sentencing guidelines. Between 1984-1990, hundreds of mandatory sentences were established for drug and violent crimes.

Powder Cocaine vs. Crack Cocaine: The 100:1 Disparity

In 1986, the death of number-one draft pick Len Bias due to a supposed crack overdose, as well as fears of a "crack epidemic" ready to sweep the nation, left the country looking for answers. A large number of parents in suburbia feared that this cheap street drug would make its way out of the cities and into the bodies of their children. Thus, that year Congress passed the Anti-Drug Abuse Act, establishing the harshest drug penalties the United States had ever seen. It was written into law that possession of 500 grams of powder cocaine will get an offender the same minimum five years in prison that only 5 grams of crack cocaine will get him or her. In other words, this person would receive the same penalty for holding 100 times the amount of powder cocaine. Two years later, the Omnibus Act furthered the disparity. It established a 20 year maximum for simply possessing five grams of crack. The maximum for simple possession of cocaine is only one year.

Why such a a disparity? The 1980's fear of a crack epidemic sweeping the nation were a main impetus behind these laws. Unfortunately, over two decades later, when it is clear that crack cocaine is still a large problem but certainly not an epidemic, the same unjust laws are in place. There are a variety of myths about crack cocaine that still exist in the minds of many Americans. Crack is certainly an awful drug. The US Sentencing Commission even announced that crack is not medically different enough from cocaine to deserve such ridiculous disparities in laws. The myths that crack is instantly addictive and that it leads to more violent behavior than cocaine, despite the falsehood in these statements, still exists.


Congress should follow state's lead in reducing drug penalties
delawareonline OPINION

New York Gov. David Patterson and his state’s Legislature are rolling back more than 30 years of some of the nation’s toughest drug-sentencing laws. The laws certainly helped overpopulated prisons with petty users and dealers. But whether this rock-hard approach to crime helped lessen crime use is becoming more debatable as time goes on.
triggerAd(1,PaginationPage,2); The laws were born of Gov. Nelson Rockefeller’s 1973 attempt to fight a drug-related “reign of terror.” Mandatory minimum sentences were popular and set the stage for Congress to come with a series of stringent federal laws. Those laws, likewise, crowded our prisons, but did little to permanently cut down use or the violence associated with illegal drugs.

That this was the wrong strategy is becoming more apparent. The congressional action was driven by crack cocaine’s rising popularity and the spread of deadly violence to suburbia.

It takes 100 times more powder cocaine than crack – the cheaper “rock” and more quickly addictive form – to trigger the five- and 10-year mandatory minimum sentences under federal law.

Congressional reasoning was based on the mistaken belief that crack was instantly addictive and more harmful to unborn children than other drugs. Several members of Congress have proposed eliminating the disparity for simple possession and for authorizing funds for prison-based drug-treatment programs.

Congress should follow through that line of thinking. New York’s action is one indication that many Americans are rethinking a failed policy. The continuing violence of Mexican drug cartels fighting over the right to feed America’s voracious appetite for illegal drugs is another reason to reconsider the strategy.

It’s time to rethink the war.