Eliminating Low-Level Drug Offense Prosecutions: Will This Help or Hurt?

Some states have moved or are moving toward reevaluating, and in some cases ending, the practice of prosecuting low-level drug offenses. Recently, Oregon voters made the state the first in the U.S. to officially decriminalize the possession of small amounts of all drugs. 

When the ballot initiative Measure 110 passed with a 58% vote during the November 2020 election, it meant that possessing drugs for personal use, such as cocaine and methamphetamine, was no longer an offense in Oregon, as an article in The Conversation explains. 

Instead of punishing people for using substances, supporters of the initiative want to recognize that substance abuse and addiction are public health issues that deserve health care and treatment as the response, not criminal offenses. 

As Ballotpedia notes, four states—Arizona, Montana, New Jersey, and South Dakota—approved legalizing the use of recreational marijuana. Marijuana remains a controversial substance. While more than 30 U.S. states have permitted medical and/or recreational marijuana use, it is still illegal under federal law to grow, possess or sell cannabis. If a person is found with small amounts of marijuana, they could still face serious federal penalties. 

Drug Decriminalization: What Does It Mean?

As the Drug Policy Alliance (DPA) explains, decriminalizing drugs is ending criminal penalties for:

  • Drug use and possession
  • Low-level drug sales; and
  • Owning or having equipment that is used for putting drugs into the body, such as a syringe

The organization says there are several benefits to decriminalizing drug possession and low-level sales, including:

  • Putting the health and safety of substance users over punishment
  • Cutting down costs and population sizes in U.S. jails and prisons
  • Freeing up law enforcement officials for other purposes
  • Reducing the stigma associated with drug use so that people can feel comfortable getting treatment for substance abuse and addiction

For these reasons and others, eliminating low-level drug offense prosecutions could help, it says. It argues against the concern that decriminalizing drugs would encourage more people to use drugs and increase crime.

“Data from the U.S. and around the world suggest that treating problematic drug use as a health issue, instead of a criminal one, is a more successful model for keeping communities healthy and safe,” it writes.

Drugs and Illegal Drug Use Are Still Against the Law

It is important to note that decriminalization is not the same as legalization. As The Conversation explains, drugs are still against the law, and selling them is, too.

Drugmakers and drug dealers can still face criminal charges in states where decriminalization has taken place.

However, in Oregon, possessing drugs is a civil matter, not a criminal one, which means a person could be required to pay a fine or seek treatment or therapy to help them address their substance use.

Some Drug Offenses Can Lead to Federal Penalties

Because drug use is still illegal in many cases, it is important to also know that federal laws and their penalties will still be used where applicable. The type of drug someone has in their possession, as well as how much they have, can determine what kinds of penalties they will face. If it is a large amount, they could be facing hefty federal drug trafficking charges.

Per the website FederalCharges.com, drug offenses make up the largest part of the mandatory minimum sentence caseload. The following drugs were found to be the most commonly involved in drug cases in 2010:

  • Marijuana – 26%
  • Cocaine – 23%
  • Crack cocaine – 20%
  • Methamphetamine – 17.6%
  • Heroin – 6.6%
  • Other drugs – 6.4%

If an individual is convicted of a federal drug offense, there are mandatory minimum penalties for that offense. Several factors unique to each case determine how long someone’s sentence will be. In addition to the kind of drug involved and the amount involved, other determining factors include:

  • An individual’s previous criminal record, if applicable
  • If injury or death is involved
  • If firearms are involved

Federal sentencing guidelines give judges minimum and maximum guidelines to follow for people convicted on drug trafficking charges. Depending on the case, a person could be sentenced to a year in prison to life in prison. 

Trafficking a substance can get a person a minimum of 10 years to a maximum of life in prison. If a person was injured or died, or if a prior drug felony conviction is involved, the minimum is 20 years, and the maximum is life in prison. 

If a prior drug felony conviction resulted in death or serious injury, or if there are two or more drug felony convictions, the maximum and minimum sentences are life. These are just a few mandatory minimum sentences for drug crimes.

Is It Necessary to Use Mandatory Minimum Sentences?

Some have challenged whether it is necessary for prosecutors to use mandatory minimum sentences if the person charged is a non-violent, low-level drug offender. 

In its 2017 Mandatory Minimum Penalties for Federal Drug Offenses Report, the United States Sentencing Commission noted the Smart on Crime Initiative’s stance on this issue (Page 17 of the printed PDF). Per the report, the initiative advised that “prosecutors should decline to charge the quantity necessary to trigger the mandatory minimum sentence if the defendant meets” certain criteria that determine them not to be a serious offender. These criteria, taken verbatim from the report, are:

  • The defendant’s relevant conduct does not involve the use of violence or a credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;
  • The defendant is not an organizer, leader, manager, or supervisor of others within a criminal organization;
  • The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and 
  • The defendant does not have a significant criminal history (normally evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions).

These criteria are among the reasons why some people support handling minor drug offenses differently.

Report: Low-Level Offenders Are Often Hit with Stiff Sentences

People charged with a low-level drug offense often have a small amount of drugs or drug paraphernalia on them. These can be considered minor offenses, which do not warrant complete lengthy prison sentences, some say. Instead, they say, those sentences should be saved for high-level offenders, such as drug importers and drug traffickers.

A Pew Trust report highlights that lower-level offenders have been on the receiving end of sentences that are suited more for high-level offenders. According to its report, the U.S. Sentencing Commission found in 2009 that serious traffickers represented only 11% of federal drug offenders. However, nearly half of those sentenced for federal drug crimes that year were lower-level offenders, such as street dealers and couriers.

Decriminalization could help change this so that the punishment fits the crime of the individual involved. With a new approach in place, substance users can avoid stiff penalties, jail time, and a criminal record that could be hard to come back from. They can also get help for their substance use disorder as well as their mental health disorder if one is present.

Drug Policy Reform: Is It Overdue?

In 1971, President Richard Nixon identified drugs as Public Enemy No. 1 and declared a War on Drugs in response to widespread recreational drug use in the 1960s. Over the decades, critics say the campaign has largely failed. There is criticism that it has unfairly targeted certain groups of people, particularly Black people and other people of color, and the economically disadvantaged. 

The Pew Trust also points to data showing that imprisonment for drug offenses is not as effective a deterrent as intended. After comparing imprisonment rates across states, it “found no statistically significant relationship between drug imprisonment and these indicators.” The indicators were drug problems involving people who self-reported drug use (not including marijuana), drug arrest, and overdose.

In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths,” it wrote.

There are pros and cons to decriminalization, but there is evidence that the American voting public supports changes at the state and federal government levels in how drug offenses are addressed. Ultimately, time will tell if it’s effective.

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