by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”
Attorney General Eric Holder announced a new charging policy that has the potential to eliminate mandatory minimum sentences in many drug cases. Holder’s Aug. 12 announcement marks the most significant policy change in what has been, until now, a largely rhetorical shift away from the failed war on drugs.
The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases. The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor. The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties. Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms. (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)
The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.” And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability.
Take drug couriers for example. Drug couriers are considered expendable by drug organizations. Most are addicts or otherwise down-on-their luck. In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown. They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border.