Drug offence sentencing practices in the United States of America
Author: J. C. WEISSMAN
Pages: 27 to 41
Creation Date: 1984/01/01
Chief Deputy District Attorney, Denver, Colorado, United States of America
The United States criminal justice system, in response to a variety of risks, makes available a range of options to help control drug offenders. Pre-arrest diversion, pre-trial diversion, pre-trial release, probation, split sentencing, warn release, incarceration and parole release are alternative dispositions involving a graduated scale of punishment, incarceration, specific deterrence and rehabilitation.
New drug offence sentencing policies are emerging within the criminal justice system. Traditional values of rehabilitation are currently less favoured and contemporary doctrines advocate sentencing based on principles of uniformity and retribution. Drug law sentencing practices are a principal concern of this article and the major policy themes are systematically reviewed. Diversion, criminal responsibility, selective incapacitation, trafficking, and cocaine abuse are examined. Guidelines for policy development are recommended and the analysis covers the related concepts of sentencing ideology, decriminalization, and determinate sentencing models. Specific recommendations are offered for revision of drug offence sentencing policies to incorporate the emerging penal values.
As noted elsewhere  , sentencing constitutes the pivotal aspect of United States drug policy. Despite significant liberalization of domestic drug control policies, the United States is committed to a criminal law approach as regards drug infractions. Decriminalization has received minimal attention, limited in scope to possession of cannabis for personal use.
The sequence of events that the user of drugs faces within the criminal justice system is uncomplicated. For regular users of drugs, contact with the criminal justice system is routine. The illegality of drug use invites exposure to arrest and to the consequences of criminal justice processing. Once involved with drugs, the person almost inescapably faces penal measures.
Fashioning of the most appropriate penal response deserves judicious scrutiny. The task rises above the retribution versus rehabilitation debate. Instead, the pertinent questions involve interrelated concepts of social harm, uniformity, responsibility, prediction, utilitarianism, and deterrence.
A major shift in sentencing and correctional policy has been occurring in the United States. Decades of adherence to the ideal of rehabilitation are being repudiated  . Values of commensurate or just deserts, emphasizing equality, certainty and retribution, are advancing towards dominance.
The shift is characterized by diversity true to the federalist nature of United States criminal law. Each State jurisdiction, autonomous politically and heterogeneous demographically, establishes a separate penal framework. Even the federal criminal justice system, which lays down a uniform basis of authority, features diverse practices  .
With respect to the drug law violator, the new approach is critical. Recent ideological developments bear directly upon drug offence penalties. Allegiance to rehabilitative values has been normative for drug offenders, but those values are being disputed in a search for revised policy foundations.
Inadequate attention has been devoted to this theme. More esoteric topics, such as the homicide liability of death-producing drug violations, have captured public fancy  . In 1977, the author attempted to initiate a heuristic sentencing dialogue, but the model has not been refined in the ensuing years  .
This article provides an opportunity to update the drug law sentencing inquiry. New developments - empirical, statutory and theoretical - are reviewed. The aim is to survey current United States drug law sentencing policies and practices and to examine possible future directions.
Locating reliable sources of data relative to United States drug law sentencing practices is difficult. Despite the infatuation of United States criminology with multivariate statistical methods, useful systematic data sets tracking offenders from arrest to disposition of the case are rare. The policy information base often consists of selected case studies or anecdotal reports.
The research carried out by Johnson and Bogomolny during the 1970s, sponsored by the National Commission on Marihuana and Drug Abuse, provides the most informative glimpse into United States drug sentencing practices. The methodology used involved the examination of six months of drug arrests in several major cities. Conviction rates varied from 13 to 58 per cent. A sentence of incarceration was handed down in 37 per cent of the cases, but nearly half of the convictions (48percent) resulted in a disposition of probation or community treatment. Again, intercity variation was the pattern, with rates of incarceration extending from 26 per cent to 55 per cent  .
Analysis of the statistics yields findings of major theoretical interest. The presence of concentrated law enforcement investigation shows a positive correlation with sentence severity. Similarly, distribution of violations is associated with incarceration terms. Sentence severity is also associated with the level of abuse potential of the drug and the seriousness of the offender's criminal history.
Overall, sentence lengths were moderate. The vast majority of offenders (80 per cent) received a nominal term of one year or less and only 2 per cent were ordered to serve five or more years of incarceration. The ordering of treatment conditions, on the other hand, was common and explained many community sentences.
Other studies have been less successful in capturing the dynamics of sentencing. In 1973, the State of New York enacted a harsh "get-tough" penalty revision aimed at interrupting drug trafficking and deterring drug use. The so-called Rockefeller Law was considered an experiment in United States drug policy, although similar legislative action had been taken decades earlier  .
To monitor the effects of the Rockefeller Law, the United States Government commissioned an exhaustive evaluation. Three years of interdisciplinary research at a cost of S US 959,000 were devoted to the study, the conclusions of which were critical of the experiment. The report found little evidence of success with respect to the achievement of the articulated goals  .
In the opinion of the author, the New York Drug Law Evaluation is flawed and its significant methodological oversights restrict its validity. Despite a prestigious array of expertise, the research group committed basic conceptual errors  .
Other case studies deserve attention. Relying upon empirical data from a single county (Mecklenburg, North Carolina), Grizzle developed an analytical model which calculates probable drug use levels based on alternative control strategies. This policy evaluation model distinguishes between types of illegal conduct and modes of law enforcement activity. Although the conclusions are complex, the data confirm the proposition that each drug control policy option is associated with variable cost and the effects of incarceration  .
White and Lindquist adopt a more traditional case-study design in examining Bexar County, Texas. To determine penal outcomes and explanatory relationships, the researchers studied drug offences over a period of three years. The distinction between distribution and possession offences proved to be significant. For the former category, convictions occurred in almost one half of the arrests and incarceration was ordered in approximately one half of those cases. Possession offences received more lenient treatment. Only one third of those arrests resulted in conviction and less than 40 percent of that group were incarcerated  .
A systematic review of the literature reveals a paucity of additional information concerning United States drug violation sentencing practices. Because of the fragmentation of the criminal justice system, a solid foundation of national statistics is lacking. In fact, reference to even the most reliable source of national data, the Sourcebook of Criminal Justice Statistics , does not materially aid the search. The Sourcebook lists summary data on offenders convicted of violations of the Drug Abuse Prevention and Control Act, but report the information in raw statistical form without analysis.
Various surveys of drug law penalties describe the sentencing parameters. Levine catalogues the penalties of all State jurisdictions  . Weissman methodically reviews drug diversion authorities and categorizes the various sentencing options  .
Another category of relevant data, evaluation reports of penal practices, indirectly explains sentencing practices. In 1972, the Federal Government initiated the national Treatment Alternatives to Street Crime (TASC) drug diversion programme, the excellent final evaluation  of which provides valuable information. The report offers a wealth of descriptive and analytical data concerning points of diversion intervention, demographics and criminal histories of drug offenders, methods of treatment referral from the criminal justice system, and outcomes of diverted cases. Significantly, the evaluation revealed that despite the goal of the programme to make pre-trial diversion a routine procedure, legal decision-makers preferred treatment referral as a post-conviction sentencing option.
With respect to related drug offender indices, measurement of drug arrests and the dimensions of the criminal drug-offender population, useful and informative data sets have been established. The annual uniform crime reports of the Federal Bureau of Investigation record several categories of drug law violations  . For several decades the federal addict-reporting programme has tracked offenders and contributed to the criminal justice knowledge base  .
Finally, several other federally sponsored drug-reporting systems furnish additional indirect information. Both the National Institute of Drug Abuse (NIDA) and the Drug Enforcement Administration (DEA) administer trend analysis data programmes. The NIDA Treatment Outcome Prospective Study (TOPS), a large-scale study of the effects of federal drug abuse treatment programmes, is the most relevant programme in terms of sentencing information. Secondary analyses, such as the research of Collins and Allison, provide rich detail on the interactions between sentencing practices and treatment effectiveness  .
In brief, United States data sets on drug offence sentencing are not sufficiently developed and co-ordinated. Criminal justice patterns are examined systematically only for certain periods of time and geographic areas. Available data are fragmented and suspect in terms of validity and reliability. The few solid studies provide dated but useful guides to the sentencing practices of United States drug law.
United States sentencing policy is in flux and the status of drug violators is central to the controversy. Besides the focus upon principles of commensurate or just deserts and determinacy, policy-makers are scrutinizing issues of responsibility, selective incapacitation, trafficking behaviour, and cocaine abuse risks. Because of the convergence of those factors, maintenance of the status quo is unlikely.
Penal treatment of drug offenders has always received special consideration. Since the 1970s, the predominant trend has been development of diversion mechanisms. Variously referred to as diversion, systems interface, and linkage programming, the strategy seeks to channel drug abusers away from incarceration and into community treatment programmes.
The author's research on this subject suggests universal endorsement of this philosophy, at least in theoretical terms  . Utilizing a definition of diversion authority limited to statutes and court rules authorizing dismissal of legal charges upon successful completion of treatment, the survey determined that 41 States of the United States had enacted formal diversion authority. Furthermore, implementation of the concept was realized in so far as federal support of the national TASC programme affected nearly every major metropolitan community in the United States.
Nevertheless, the concept of drug diversion is rife with controversy. For instance, the Report of the President's Commission on Mental Health categorically recommended discontinuation of drug diversion, proposing an absolute divestment of criminal justice influence from the treatment process  . In addition, critics point to numerous issues of civil liberties, programme effectiveness, and community values  .
Nonetheless, drug diversion remains a significant feature of United States criminal justice policy. During a period of retrenchment and hardening of penal attitudes, this fundamentally rehabilitative concept demonstrates resiliency. The author has argued that the explanation of this apparent anomaly lies in the United States ambivalence towards selfdirected drug violators.
Drug diversion presents a special case. As long as drug use is regulated within the criminal law framework, an ameliorative device is necessary. This is the function of drug diversion, which alleviates the harshness of the criminal law, ensures the channelling of criminal addicts into treatment programmes, and sustains the symbolic values associated with our legacy of ambivalence regarding social control of drug use  .
It is important to emphasize, however, that diversion programming is subject to further refinement. For instance, the most sophisticated diversion model, the Uniform Drug Dependence Treatment and Rehabilitation Act  , has not been widely adopted and this comprehensive approach merits special consideration.
The Uniform Act creates multiple opportunities for diversion of the drug-dependent offender. Diversion may be authorized and civil commitment invoked in more serious consumption-related offences. Only violent drug offenders are excluded from diversion eligibility.
The Uniform Act requires voluntary participation. The drug offender may reject diversion in favour of routine criminal justice processing. The diversion framework includes procedural and substantive safeguards to ensure protection of civil liberties. For example, civil commitment is strictly limited in terms of duration; the diversion term expires at the lesser of eighteen months or the maximum permissible sentence for the alleged offence. In addition, successful compliance causes either dismissal of charges or a deletion of the adjudication of guilt and expungement from the criminal records.
Diversion clearly remains a vital concept with reference to drug law violators. It has become an institution for minor cases, especially drug possession charges involving small quantities for personal use. Because of the changing values of American criminal justice, modifications may occur and policy-makers may consider options such as the comprehensive provisions of the Uniform Drug Dependence Treatment and Rehabilitation Act.
The definition and application of the concept of criminal responsibility has traditionally received widespread attention in the United States. In the aftermath of the insanity acquittal of an individual charged with the attempted assassination of the President of the United States, public opinion has stimulated rethinking of responsibility doctrines. Major professional organizations, including the American Bar Association, the American Medical Association and the American Psychiatric Association, have endorsed insanity defence reform  . Already, two States (Idaho and Montana) have introduced substantial modifications  . The United States
Supreme Court has also become involved by clarifying the principles governing involuntary hospitalization for insanity acquittees  .
Application of the insanity defence and related criminal responsibility doctrines to drug offences is problematic. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders classifies pathological drug-use behaviour as an expression of mental disorder. However, that recognition does not ipso facto result in freedom from criminal responsibility. Since the tests of responsibility are uniquely legal in nature, they require proof of a specified behavioural standard in addition to psychiatric disorder. The most common of the non-clinical requirements is the cognitive McNaughtan test  , which determines the inability to distinguish right from wrong with respect to the act in question.
Typically in drug prosecutions, mere evidence of a drug use syndrome does not satisfy insanity standards. Proof of an additional pathology substantially interfering with cognitive capacities and volitional controls is required. In certain instances, however, evidence of chemical intoxication evokes a ruling of diminished capacity, a lesser form of criminal responsibility. By virtue of this theory, the offender is entitled to reduced penal consequences upon a showing of diminished psychological capacities.
Drug users have asserted a novel application of the doctrine. They contend that because of the interference of compulsive psychoactive drug use with volitional controls, they are entitled to relief from the consequences of any offences associated with the addictive process. Judicial authorities have been unsympathetic to this reasoning except as regards prosecution for the mere status of addiction  .
The contemporary trend of revision of criminal responsibility doctrines shows little likelihood of modification of these principles. The major thrust is towards elimination of the irresistible impulse or volitional component of legal insanity. Because of pervasive scientific and philosophical criticism of this particular concept, lawmakers are removing volition from the insanity defence. This direction should further minimize the function of pathological drug use in influencing notions of criminal responsibility.
For a variety of political and empirical reasons, United States criminal justice policy has placed the notion of selective incapacitation to the forefront. The concept is simple. In order to maximize public safety, penal resources are allocated to strategies which identify and isolate high-risk offenders accounting for a disproportionate incidence of serious and violent crime. Peter Greenwood, a senior scientist from Rand Corporation, is a major contributor to the development of this approach and his views are well described by Blackmore and Walsh  . Greenwood and associates had developed a classification scheme for identification of the most dangerous and persistent criminals among the offenders. Having identified such offenders, long, strict prison sentences could be imposed on them, whereas shorter jail terms and community-based sanctions could be applied, with some assurance of community safety, to those determined to pose less of a threat. If, according to Greenwood, prison sentences for all high-risk offenders currently incarcerated in California were doubled in length, and for low-risk offenders were cut in half, the crime rate would decrease in that State by 15 percent and the prison population by five per cent  .
Reliable sets of empirical data point to the existence of an undeterrable core of predatory criminals committing extremely high levels of serious crime. Beginning with the Wolfgang and associates' studies of young men born in Philadelphia, a compendium of knowledge has developed concerning the chronic nature of the most serious offenders. The initial Wolfgang cohort, consisting of males born during 1945, reveals that 6 per cent had five or more criminal offences, and that this select group accounted for 52 per cent of all cohort offences. That same chronic element accounted for 82 per cent of robberies, 71 per cent of murders, 73 per cent of rapes, 70 per cent of aggravated assaults, and 63 per cent of index crimes  . Examination of the subsequent cohort, youth born in 1958, also shows an uneven distribution of crime skewed in the identical direction.
Confirmatory evidence has been produced by surveys of California, Michigan, and Texas prison inmates conducted by Rand Corporation researchers. Using self-report rather than arrest records, Rand investigators were able to scrutinize offending patterns of individuals deemed sufficiently culpable to deserve incarceration. Once again, a select group of extremely chronic offenders was identified, committing as many as fifty serious crimes annually. The data indicate a pattern of specialization for certain offenders in serious, violent crimes  .
Although more restricted in scope, examination of serious offenders in Columbus, Ohio is noteworthy for its results. The Ohio State University researchers employed a rigorous methodological approach in examining longitudinal patterns. With respect to the subject of violent offenders, the study determined that "once having committed a violent crime, the odds were about even that the man committing it would commit another"  .
The Rand Corporation studies determined that a history of drug use was a significant factor in explaining criminal dangerousness. Among seven predictor variables correlated with high rates of offence, several drug use indices appear including juvenile misuse as well as adult heroin addiction and barbiturate abuse  .
Although the interpretation of the data sets is the subject of controversy  , it is evident that selective incapacitation has generated support among criminal justice officials. A recent Harvard University study commissioned by the federal Government explores the implications of reconstituting penal policy to give effect to incapacitative strategies. The group of researchers and policy-makers conclude that selective incapacitation is logical and meritorious, but to guarantee just and effective implementation, further research and conceptual refinement is necessary. The study notes that current predictive models produce an unknown percentage of "false positive" identifications and this compounds the problem of overcrowded prisons  . A spirit of caution is urged in proceeding with selective incapacitation policies.
Public opinion is undivided with regard to the regulation of illicit drug distribution. Large-scale drug trafficking, generating vast sums of illegal income, spreading drug use among novices, and precipitating incidental acts of violence, is condemned. This expression of organized criminal activity is a pernicious form of criminal racketeering.
Since 1970 every President of the United States has strongly condemned drug trafficking. During each successive administration new law enforcement programmes have been initiated to curtail the illegal distribution of drugs and proposals have been submitted to the Congress to increase criminal penalties. Moreover, a Task Force of Violent Crime has made the following specific recommendations:
"The Attorney General should support the implementation of a clear, coherent and consistent enforcement policy with regard to narcotics and dangerous drugs, reflecting an unequivocal commitment to combating international and domestic drug traffic and including:
A foreign policy to accomplish the interdiction and eradication of illicit drugs wherever cultivated, processed, or transported, including the use of responsible herbicides domestically and internationally;
A border designed to effectively detect and intercept the illegal importation of narcotics, including the use of military assistance;
A legislative program fashioned to support the enforcement policy and to improve the criminal justice system. Other recommendations contained in this report to improve law enforcement generally can materially facilitate the narcotics program"  .
Therefore, despite controversy about the effectiveness of law enforcement methods, the policy aspects are evident  . The United States Government adheres to unwavering support for tough criminal law measures to eradicate drug trafficking.
The subject of cocaine deserves brief but separate attention. In recent years, the socially destructive properties of cocaine have been widely publicized. Available evidence shows disturbing increases in and new patterns of cocaine abuse. Although reliable cross-sectional and longitudinal data sets are somewhat underdeveloped, the available scientific data, combined with anecdotal reports, are persuasive in demonstrating the validity of information about the phenomenon of cocaine abuse and trafficking.
Significantly, on an almost daily basis, the media report revelations of cocaine abuse by notable public figures, such as athletes, entertainers and political officials. The effects of chronic pathological abuse of cocaine are evident from these reports, and although the criminogenic impact of such abuse is not yet sufficiently known  , the obvious consequences have aroused public concern.
To date, penal policy with regard to cocaine offences has not achieved uniformity. In contrast to norms concerning cannabis consumption, the criminal justice ground rules for sanctioning cocaine violations have not been defined. Policy-makers are undecided whether to classify cocaine with cannabis or with heroin for purposes of punishing personal possession offences. Although definite, ascertainable data on criminal justice practices are unavailable, anecdotal reports indicate that diversion options are routinely considered for cocaine possession offences, while stiff penal measures are applied to trafficking crimes.
United States criminal sentencing has entered a new policy era. Historian David Rothman labels it as the period of "the power of sentence"  . Others describe it by reference to its philosophical center-piece, the principle of commensurate or just deserts. A leading exponent of the new approach, Andrew von Hirsch, indicates that the fundamental principle of deserts is that the severity of the punishment should be commensurate with the seriousness of the offender's criminal conduct. The commensurate deserts principle put emphasis on the gravity of past conduct, not on the likelihood of future behaviour, which distinguishes desert from the crime control goals of deterrence, incapacitation, and rehabilitation. A penalty should fairly reflect the gravity of the defendant's criminal act, rather than its effectiveness in preventing future crimes  .
The impact of the commensurate deserts theory is significant. As von Hirsch recently noted, "it is scarcely news that a number of American jurisdictions have moved, or are moving, toward adoption of formal sentencing structures... that provide explicit and detailed guidance on how severely convicted offenders should be punished"  . At least one half of the United States have already enacted determinate sentencing laws based on the principle of commensurate deserts  .
However, determinate sentencing is not a unitary concept. Each application reflects the fundamental belief in the wisdom of commensurate deserts but variations abound. The model prescribes a fixed, non-utilitarian punishment believed to be deserved for an infraction, and adjustments for factors pertaining to the offender are prohibited. Strict adherence to principles of uniformity and retribution based on the nature of the misconduct governs this approach.
Alternative models, on the other hand, integrate residual criminal justice sentencing values such as deterrence and incapacitation. For instance, the determinate sentencing proposal of the American Bar Association advances consideration of utilitarian principles of prediction and, to a lesser degree, rehabilitation  .
The tension between the alternative versions will not abate. Indisputably, United States sentencing philosophy has discounted the rehabilitative ideal and now favours retributive concepts. The retributive sentiment is tempered by other traditional values, however, and the outcome is a complex coalition of sentencing values. Liberals, for instance, favour determinacy to eliminate punishment disparities. Conservatives endorse the concept for other reasons, principally the emphasis on punishment and the potential for incapacitation of dangerous offenders. The certainty and conceptual clarity of determinacy receive universal support.
Because of these distinguishable goals, caution is exercised in order to accommodate the conflicting interests. Moreover, as D. Rothman argues, sentencing eras evolve gradually and older values do not disappear  . Rothman also observes that "... the critical feature of the current situation... is the unprecedented amount of conflict and divisiveness" and that "... the reform movement in sentencing may not have as much to show for itself as its predecessor"  .
Observers familiar with United States drug control policy of the 1970s have questioned the potential for revival of support for decriminalization. When this philosophy was at its peak of popularity, lawmakers conscientiously entertained proposals to lessen the influence of the criminal law in regulating drug use. The concept received endorsement from a prestigious national commission  and from a President of the United States  .
Realists recognized, however, that the proposals were limited in scope and linked to the mores of the 1970s. With regard to the temporal influence, the observations of McGillis and others concerning another criminal justice phenomenon are equally fitting: "The ideas that shape public policy fit the temper of the times. Otherwise, they lack the currency necessary to legitimate and guide governmental action"  . Today, public opinion concerning psychoactive drugs favours tougher measures and decriminalization rhetoric has faded away.
In addition, decriminalization proposals of the 1970s were carefully circumscribed, with the focus on possession of small quantities of cannabis for personal use. In point of fact, criminal controls have been eliminated or reduced for this type of activity in a number of States  . Grander schemes of decriminalization have been rejected, however, and even moderate proposals, such as the uniform drug dependence treatment and rehabilitation act  , no longer receive attention.
The analysis of this trend is uncomplicated. The resistance to massive decriminalization is explained by public attachment to moralistic, anti-drug values. American drug control philosophy is dominated by an antipsychoactive-drug norm, and reliance on a criminal law approach will prevail. Despite reasoned pro-decriminalization studies [41, 42], the movement has lost its vitality for the 1980s.
Several years ago the author of this article forecast the insurgency of determinate sentencing and attempted to analyze the impact of this philosophy upon drug offences and offenders  . Because of its popular appeal, the principle of commensurate deserts seems to have a promising future, and current signs indicate that sentencing code modifications are indeed incorporating the fundamental principles of this model  .
In his analysis in 1977, the author contended that drug control policy represented a special case in this policy shift. Because of the legacy of ambivalence toward behaviour related to drug use, the application of retributive values is not entirely satisfactory. To incorporate the principle of commensurate deserts into the existing configuration of drug law practices, the author posed a multivariate determinate sentencing model.
The proposed model requires integration of several basic premises. First, an objective, uniform, identifiable harm is assigned to each type of offence. This threshold variable is factored by the nature of the offender's drug use in determining the choice of severity among sentencing options. Sanctions involving monetary fines, pre-arrest diversion (drug education or community service), pre-trial diversion (drug rehabilitation), probation, incarceration and incarceration plus monetary fines are established, and the levels of drug use are categorized as non-use, intermittent use, and involved use.
Penal law changes in the succeeding years have reinforced these views. Sanctioning of drug use offences requires a specialized perspective incorporating the distinct issues of social harm and personal culpability peculiar to drug offences. This frame of reference has special appeal with regard to possession cases. Integration of these factors into a determinate framework requires careful analysis.
By way of analogy, an important theoretical statement reinforces this reasoning. Formulating a model for incorporating mental disorder into determinate sentencing, Norval Morris recommends a similar but refined approach. Morris outlines the conditions for allowing proof of mental disorder alternately to mitigate or aggravate the basic determinate penalty  . Such an approach evaluates the precise relevance of the disorder to the criminal act and to sentencing goals.
United States drug sentencing policies, which are currently changing in direction, need to be more documented and evaluated. Because reform is in process, the opportunity for progressive change exists. If future policymaking develops principles which integrate values of commensurate deserts with the special characteristics of drug law practices; gains will be achieved in promoting effectiveness and fairness. Scholars and practitioners must join forces to devise a coherent strategy toward this goal.
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