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Tuesday, February 8, 2011

Is Mandatory Drug Sentencing Good?


All good citizens seek an end to escalating problems associated with drug abuse. On this, everyone can agree. However, the methods, past and present, used to fight drug crimes are questionable. Some insist stiffer, longer sentences for those convicted of these crimes would deter such crimes.


In response to these appeals for harsh penalties, Congress enacted mandatory minimum sentencing laws in 1986 which forced judges to deliver fixed sentences to individuals convicted of a crime, regardless of culpability or other mitigating factors. Surely, this change aided the war on drugs. Or did it? 


Unfortunately, mandatory minimum drug sentencing has delivered some negative outcomes. ("A Study on the Use and Impact of Mandatory Minimum Sentences," Pennsylvania Commission on Sentencing: Report to the House of Representatives, House Resolution 12, October 2009)   


Here Are a Few Results to Consider:

- Significant increases in the costs of corrections due to longer prison terms and an increasing prison population,

- Removal from consideration of other sentencing options that may prove to be less costly and/or more effective than mandatory incarceration,

- Impact on all aspects of the criminal justice system, including pleas or verdicts and offender eligibility for rehabilitation programs and early release;

- Limiting the discretion of the sentencing judge


- Providing a stick for inducing cooperation in investigating and prosecuting others involved in the drug trade... this can conflict with the public interest (expressed through special provisions for "kingpins") in meting out the longest sentences to those most heavily involved in the drug trade.  

(J. Caulkins, et al., "Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money?" RAND Corporation, 1997)


In fiscal year 2005, 56.8% of all federal crack cocaine defendants were low-level offenders such as mules or street dealers. Only 8.4% were high-level dealers. In the same year, 40.4% of all federal powder cocaine defendants were low-level offenders such as mules or street-dealers. Only 12.8% were high-level dealers.("Report to Congress: Cocaine and Federal Sentencing Policy," U.S. Sentencing Commission, May 2007)

Federal mandatory drug sentences are determined based on three factors:


1. The type of drug, 

2. Weight of the drug mixture (or alleged weight in conspiracy cases),

3. The number of prior convictions. 


Now, judges are unable to consider other important factors such as the offender's role, motivation, and the likelihood of recidivism. Only by providing the prosecutor with "substantial assistance", (information that aids the government in prosecuting other offenders) may defendants reduce their mandatory sentences. This creates huge incentives for people charged with drug offenses to provide false information in order to receive a shorter sentence.

So, although Congress intended mandatory sentences to target "king pins" and managers in drug distribution networks this strategy does not seem to be working because the most culpable defendants are also the defendants who are in the best position to provide prosecutors with enough information to obtain sentence reductions - the only way to reduce a mandatory sentences.("Mandatory Minimum Sentences,"

Low-level offenders, such as drug mules or street dealers, often end up serving longer sentences because they have little or no information to provide the government.

Is this the criminal justice system the people envision as "cracking down on drug crime"? In many ways, the power of the prosecutor in sentencing has diminished the traditional role of the judge. The result has been even less fairness, and a huge rise in the prison population.

Talk about recidivism and stiff sentencing? In four recidivism studies conducted by the Pennsylvania Sentencing Commission, the recidivism rates (i.e., arrest for a new crime or technical violation resulting in reincarceration) three years after release were as follows: "drug delivery offenders (54%), school zone offenders (57%), repeat violent offenders (54%) and firearms offenders (50%). Younger offenders, those with a greater number of prior arrests and/or convictions, and those sentenced to prison were more likely to recidivate; those sentenced for a drug mandatory were more likely to be re-arrested for a drug offense and those sentenced for a repeat violent offense or firearms mandatory were more likely to be re-arrested for an offense against a person.("A Study on the Use and Impact of Mandatory Minimum Sentences," Report To the House of Representatives, House Resolution 12, Pennsylvania Commission on Sentencing, 2007)



Alan Johnson reported that Ohio criminal prosecutors are backing a plan to eliminate some mandatory prison sentences for trafficking and possessing chemicals for the manufacture of drugs. The plan would also give judges greater flexibility to send second-time drug offenders to drug treatment rather than back to prison. ("Prosecutors Seek Elimination of Mandatory Prison for Some Drug Offenders," The Columbus Dispatch, March 24 2009)

The Ohio Senate passed Senate Bill 73 (2007) that would eliminate the disparity in sentencing between crack and powder cocaine -- by raising sentences for powder cocaine to make them as harsh as those for crack. Is this a step backwards

In a reflection of federal laws that treat crack cocaine much more harshly than powder cocaine, Ohio state law makes possession of only 25 grams of crack a first-degree felony, while it takes 500 grams -- or 20 times as much -- powder cocaine to trigger the same charge. Ohio law makes any cocaine sales offense an offense "for which there is a presumption of a prison term" and calls for mandatory minimum prison sentences for any cocaine sale of five grams or more of crack or 10 grams of powder cocaine.

The U.S. Sentencing Commission, the US Supreme Court, and the Congress are all contemplating ways to undo the federal powder-crack cocaine sentencing disparity. But, none of those institutions are contemplating doing so by raising the penalties for powder cocaine offenses to the level of crack cocaine.

Present Scheduling of Drugs

Each controlled substance is categorized under law as having a “bulk amount." Each drug has a different bulk amount that dictates the charge and potential sentence that goes with each violation.

The Controlled Substance Act (CSA) places all substances that are regulated under existing federal law into one of five schedules. This placement is based upon the substance's medicinal value, harmfulness, and potential for abuse or addiction.

Schedule I is reserved for the most dangerous drugs that have no recognized medical use, while Schedule V is the classification used for the least dangerous drugs. The act also provides a mechanism for substances to be controlled, added to a schedule, decontrolled, removed from control, rescheduled, or transferred from one schedule to another.

    Schedule I:
  • Drug has high potential for abuse.
  • No current accepted medical use in treatment in the U.S.
  • There is lack of accepted safety for use of drug.
  • Example: Heroin, LSD, Marijuana, GHB, and Ecstasy.
    Schedule II:
  • Drug has high potential for abuse.
  • Has a currently accepted medical use in treatment in the U.S.
  • Abuse may lead to severe psychological or physical dependence.
  • Example: Morphine, Oxycodone, Cocaine, Demerol, and Methamphetamine.
    Schedule III:
  • Has less potential for abuse than drugs in schedule I and II.
  • Has a currently accepted medical use in treatment in the U.S.
  • Abuse may lead to moderate or low physical dependence or high psychological dependence.
  • Example: Hydrocodone, Codeine, Anabolic steroids, some Barbiturates.
    Schedule IV:
  • Drug has low potential for abuse.
  • Has a currently accepted medical use in treatment in the U.S.
  • Abuse may lead to limited psychological or physical dependence.
  • Example: Diazepam, Alprazelam, Propoxyphene, and Clonazepam.
    Schedule V:
  • Drug has low potential for abuse.
  • Has a currently accepted medical use in treatment in the U.S.
  • Abuse may lead to limited psychological or physical dependence.
  • Example: Over-the-Counter cough medicine with codeine.

Meanwhile, in Ohio, Rx drug abuse is quickly escalating. Some of the brand names of commonly diverted prescription drugs include OxyContin ® , Vicodin ® , Percocet ® , Tylenol with Codeine No. 3, Valium ® , and Xanax ® . Pharmaceutical diversion is a continuing problem throughout Ohio, although it may not receive as much attention as other illicit drug problems. Prescription drugs are readily obtained illegally in most areas of Ohio. Law enforcement reports confirm that the distribution of prescription drugs is a lucrative business.

Many people are questioning why some of the most dangerous, most addictive, and most widely distributed Rx drugs are classified as they are. At the same time, other disparities such as classifying marijuana as a Schedule I drug seem almost ridiculous.

Here is another example of a much perceived inconsistency in scheduling. Both morphine and fentanyl are in Schedule II, and heroin is in Schedule I. Fentanyl is approximately 80 times as potent as morphine, and heroin is around three times as potent as morphine. Morphine has been used by physicians for over 150 years. It is very addictive, however it is a very effective analgesic for providing relief from severe pain, so it is licensed for careful medical use. Heroin was introduced in the late 19th century and licensed the same way until it was banned in 1924.

Proceedings to add, delete, or change the schedule of a drug or other substance may be initiated by the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), or by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group concerned with drug abuse, a state or local government agency, or an individual citizen. When a petition is received by the DEA, the agency begins its own investigation of the drug.

Another Method To Classify Drugs

Recently, in a report published in The Lancet Journal, researchers have introduced an alternative method for drug classification in the UK. This new system uses a “nine category matrix of harm, with an expert Delphic procedure, to assess the harms of a range of illicit drugs in an evidence-based fashion.
  1. Physical harm
    (a) Acute
    (b) Chronic
    (c) Intravenous harm

  2. Dependence
    (a) Intensity of pleasure
    (b) Psychological dependence
    (c) Physical dependence

  3. Social harm
    (a) Intoxication
    (b) Other social harms
    (c) Health-care costs

The researchers used the proposed classification system to test illegal and some legal substances including alcohol and tobacco. The new classification system suggested that heroin, cocaine, alcohol, benzodiazepines, amphetamine, and tobacco have a high or a very high risk of harm, whilst cannabis, LSD, and Ecstasy were all below the two legal drugs.(D. Nutt; L.A. King; W. Saulsbury, C. Blakemore. "Development of a Rational Scale to Assess the Harm of Drugs of Potential Misuse." The Lancet 369, 2007)

Kicker, OC, Oxy, OX, Blue, Oxycotton, Hillybilly Heroin - all names for oxycodone. It is called by many different names, but whatever the moniker, it is a very, very dangerous Rx drug, one among a group of pills that must be controlled. Citizens, legislators, judges, and law enforcement officers are feeling the direct impact of the epidemic of Rx drugs. Together, all people must help make critical adjustments to stop this killing.

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