Drug Laws and Snitching: A Primer by Eric E. Sterling, Esq.

Eric E. Sterling
Sterling was counsel to the U.S. House Committee on the Judiciary from 1979 to 1989 and participated in the passage of the mandatory minimum sentencing laws. Currently, he is President of The Criminal Justice Policy Foundation, Washington, DC and Co-Chair of the American Bar Association, Committee on Criminal Justice, Section of Individual Rights and Responsibilities.

How did it come about that mandatory minimum sentences for drug offenses were passed in 1986?

In 1986, the Democrats in Congress saw a political opportunity to outflank Republicans by "getting tough on drugs" after basketball star Len Bias died of a cocaine overdose. In the 1984 election the Republicans had successfully accused Democrats of being soft on crime. The most important Democratic political leader, House Speaker "Tip" O'Neill, was from Boston, MA. The Boston Celtics had signed Bias. During the July 4 congressional recess, O'Neill's constituents were so consumed with anger and dismay about Bias' death, O'Neill realized how powerful an anti-drug campaign would be.

O'Neill knew that for Democrats to take credit for an anti-drug program in November elections, the bill had to get out of both Houses of Congress by early October. That required action on the House floor by early September, which meant that committees had to finish their work before the August recess. Since the idea was born in early July, the law-writing committees had less than a month to develop the ideas, to write the bills to carry out those ideas, and to get comments from the relevant government agencies and the public at large.

One idea was considered for the first time by the House Judiciary Committee four days before the recess began. It had tremendous political appeal as "tough on drugs." This was the creation of mandatory minimum sentences in drug cases. It was a type of penalty that had been removed from federal law in 1970 after extensive and careful consideration. But in 1986, no hearings were held on this idea. No experts on the relevant issues, no judges, no one from the Bureau of Prisons, or from any other office in the government, provided advice on the idea before it was rushed through the committee and into law. Only a few comments were received on an informal basis. After bouncing back and forth between the Democratic controlled House and the Republican controlled Senate as each party jockeyed for poitical advantage, The Anti Drug Abuse Act of 1986 finally passed both houses a few weeks before the November elections.

What are mandatory minimum sentences?

A mandatory minimum sentence is a minimum number of years, typically 5- or 10-years in prison, that must be served when a person is convicted of a particular crime. Mandatory minimum sentences for drug crimes are based on the amount of drugs involved. Different drugs have different set quantities that trigger a specific minimum sentence.

Mandatory minimum sentences for first time drug offenders:
Type of drug Five Year Sentence Without Parole Ten Year Sentence Without Parole
LSD 1 gram 10 grams
Marijuana 100 plants/100 kilos 1000 plants/1000 kilos
Crack cocaine 5 grams 50 grams
Powder cocaine 500 grams 5 kilos
Heroin 100 grams 1 kilo
Methamphetamine 10 grams 100 grams
PCP 10 grams 100 grams

The idea behind mandatory minimum sentences was to encourage the government to prosecute high level drug offenders. However, the amounts that can trigger a substantial sentence are often lower than those a high level trafficker would be dealing in. For example, a drug offender could receive five years in federal prison for selling as little as five grams of crack cocaine. Five grams might be only 25 doses of crack, depending on purity, worth a few hundred dollars. This is not what high level traffickers are involved in. Most drug cases involve low level offenders. In a report issued in 1995, the U.S. Sentencing Commission found that only 11% of federal drug trafficking defendants were major traffickers. More than half were low level offenders.

The mandatory minimum sentences were criticized by the U.S. Sentencing Commission as early as 1991. In this report the commission found that all defense lawyers, and nearly half of prosecutors queried had serious problems with mandatory minimum sentences. Most of the judges pronounced them "manifestly unjust." The 1991 sentencing report particularly criticized the transfer of power in courts from judges - who are supposed to be impartial - to prosecutors, who are not. In response to some of the criticism in 1994 Congress enacted a "safety-valve" provision permitting relief from mandatory minimums for certain non-violent, first-time drug offenders.

More on mandatory minimums from the Families Against Mandatory Minimums web site.

Are Mandatory Minimum Drug Sentences Cost-Effective? A research brief from the Rand Drug Policy Research Center.

What is "substantial assistance"?

A judge in a case involving a charge that carries a mandatory minumum sentence cannot impose a sentence below that minimum, with one exception, and only if requested by the Justice Department. The sole exception for a mandatory minimum sentence exists when the government says that a drug offender has given "substantial assistance" to the government the prosecution of another drug offender. One of the common ways that the Justice Department gets testimony in drug cases is to offer to other drug offenders the possibility of more lenient sentence if they testify against another drug offender. Section 5K1.1 of the U.S. Sentencing Guidelines allows a judge to grant a lower sentence to a defendant whom the prosecutor says has given substantial assistance. Over the last 5 years nearly a third of the people sentenced in drug trafficking cases in the federal system had their sentences reduced under the substantial assistance provisions because they informed on other people.

Individual Federal offenders, fiscal years 1993-1997
Total Cases
Substantial Assistance Cases
Number Number Percent of Total Average Sentence (months) Average Departure (months) Average Percent Departure
All Offenses 191,712 37,481 19.6 40.6 47.4 59.6
Drug Trafficking 76,584 24,608 32.1 52.3 60.5 54.7
Drug Trafficking, 10+ Year Minimum 28,912 11,829 40.9 80.8 94.8 54.2
Source: U.S. Sentencing Commission

Read more on "substantial assistance" in "The Informant Trap," an article by Mark Curriden from the National Law Journal.

Read a summary of a January 1998 study published by the U.S. Sentencing Commission evaluating the current use of the substantial assistance provision.

How does conspiracy law work?

In 1988 Congress passed another, pre-election Anti-Drug Law. One of the provisions was urged by the Department of Justice to simply close a little loophole. The change was to apply the mandatory sentences of 1986, intended for high level traffickers, to anyone who was a member of a drug trafficking conspiracy. The effect of this amendment was to make everyone in a conspiracy liable for every act of the conspiracy. If a defendant is simply the doorman at a crack house, he is liable for all the crack ever sold from that crack house -- indeed, he is liable for all of the crack ever sold by the organization that runs the crack house. After the conspiracy amendment was enacted the prison population swelled. Within 6 years, the number of drug cases in federal prisons increased by 300%. From 1986 to 1998 it was up by 450%.

Source: Federal Bureau of Prisons Quick Facts

One result of the conspiracy amendment is that low-level traffickers can get very long sentences. They can also be the victims of lies by codefendants who have figured out how to cut a deal and manipulate the sentencing laws to their advantage. High-level traffickers often get lower sentences than Congress anticipated. The top organizer is in a position, for example, to identify and testify against the people who launder money for him at a bank, corrupt police officers, airport or shipping personnel, and others. When a top organizer faces a very long mandatory or Guideline sentence, he is able to offer "substantial assistance" and get a low sentence. Examples of such deals were the much reduced sentences obtained by high level cocaine traffickers who testified against former Panamanian strongman, General Manuel Noriega, when the U.S. government prosecuted him for cocaine trafficking.

What are the Sentencing Guidelines, and how do they relate to mandatory minumum sentences?

For many years in the 1960s, 70s, and 80s, many people who looked at the justice system were concerned that different federal judges gave very different sentences to people who committed very similar crimes. This might be because the judges were in different parts of the country, or because they had very different theories about just punishment. In some cases, the differences may have been a result of racial prejudice or favoritism.

After many years of debate, Congress in 1984 created a commission to create a system of sentencing that would be applied the same way by federal judges around the country. Crimes would be analyzed, and depending upon specified criteria (for example, the defendant carried a gun during a crime, but didn't fire it at any one), a guideline for an appropriate sentence would be created. Judges would have to determine the facts of the case, and the facts about the offender, including the offender's history of prior offenses, and find the appropriate guideline range which would set forth a narrow range of months from which a sentence may be imposed. If a judge finds a reason to depart from the guideline, he or she may do so, but the reason must be put on the record. Sentences that depart from the guidelines can be appealed.

In drug cases, Sentencing Guidelines are tied to the quantity of drugs involved in an offense. In a series of steps, the more drugs involved, the longer the sentence. For the principal drugs of abuse -- heroin, marijuana, cocaine, LSD, methamphetamine, PCP -- the quantity steps of the guidelines build upon the various quantity triggers of the mandatory minimum sentences. For example, 100 kilograms of marijuana in a drug offense triggers a mandatory minimum sentence of 5 years, and 1000 pounds triggers a mandatory sentence of 10 years. Therefore, smuggling 700 pounds of marijuana triggers a Guideline sentence of btween 78 and 97 months but a mandatory minimum sentence of 5 years. The judge could depart below the 78 months, but could not go below 5 years. Only if the prosecution says the defendant offered "substantial assistance" in the prosecution of another offender could the judge sentence the defendant for less than 5 years.

Read Supreme Court Justice Breyer's critique of the federal Sentencing Guidelines.

How can a low level drug trafficker avoid a long, mandatory minimum sentence?

A drug offender while in jail awaiting trial may learn the names of other persons awaiting trial. He may learn all about substantial assistance. He may learn that he can easily make up a story that will get him out of prison fairly soon if his story provides "substantial assistance" in the prosecution of someone else as a "high level trafficker." The quantity of drugs in a drug case need not be shown by physical evidence. You don't need 500 kilograms of cocaine powder to establish 500 kilograms for sentencing purposes. The simple testimony of a witness, usually offering "substantial assistance," is enough to "prove" that a quantity of drugs was sold. A clever informant can prove that someone else is a "high level trafficker" without too much trouble.

What are forfeiture laws?

Since 1970, the federal drug laws have allowed the government to seize property that is used in drug crimes or that is the profit of drug crimes. When the government takes ownership of this seized property, it is called forfeiture. On their face, these laws make sense. People who own and use property like airplanes and ships to smuggle drugs to the U.S. deserve to have them taken away.

These laws can be applied to property even when the owners are not accused of drug trafficking, even when the owners had no knowledge that the property was being used in drug trafficking. These laws can be applied even when the owner of the property takes steps to prevent the property from being used in drug trafficking, but has been unsuccessful. The property owner is required to bring a lawsuit to get their property back. He or she must post a cash bond in order to bring the suit. If the property owner has no cash or no more valuable assets, they are not able to get their property back. If the property owner cannot afford a lawyer to bring the lawsuit, they can't get their property back. The laws require the lawsuit be filed within 10 days of the seizure of the property. If you wait more than 10 days, for example, because you are trying to figure out if you need a lawyer or where you can find such a lawyer, then you lose the property, even if you are completely innocent.

The proceeds of forfeited property go to law enforcement agencies that make the seizures, not to the general federal treasury. This creates a powerful incentive to seize and forfeit property, even in unmerited cases.

The forfeiture laws are so offensive to justice that even the staunchest advocates of tough on crime policies like the conservative chairman of the House Judiciary Committee, Henry Hyde of Illinois, have called out for their reform.

Asset seizures by the DEA, fiscal year 1997
Type of Asset Number of seizures Value
Total 15,860 $551,680,150
Currency 8,123 284,680,029
Other financial instruments 507 73,602,092
Real property 748 108,833,498
Vehicles 3,695 47,379,874
Vessels 111 5,884,754
Aircraft 24 8,945,000
Other conveyance 172 1,734,731
Other 2,480 20,620,172
Source: Sourcebook of Criminal Justice Statistics 1997

Read more about forfeiture law in "The Drug War's Hidden Economic Agenda."

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