Law and Policy: Modern Enforcement, Prosecution, and Sentencing

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Law and Policy: Modern Enforcement, Prosecution, and Sentencing

The enforcement of U.S. drug and alcohol laws has been a major priority for police and prosecutors since the 1980s. Law enforcement has devoted considerable resources to the prevention of drug trafficking . People who drink and drive and people who use illegal drugs face increasingly strict punishments for violations of criminal law.

Modern methods for enforcing drug laws and prosecuting offenders have changed in several ways:

  • State legislatures have increased the penalties for drug trafficking and for operating a motor vehicle under the influence of alcohol or drugs.
  • The U.S. Congress has made drug trafficking penalties more severe.
  • Congress passed a law in 2000 that requires states to lower the legal limits of alcohol in the blood as a way to discourage drunk driving and to increase arrests of drunk drivers. States that fail to do so will lose federal highway funds.
  • Sentencing laws requiring prison terms for violators have aided the enforcement effort. Under these laws, judges do not deter- mine sentencing. This gives more power to prosecutors, who can influence the severity of the punishment based on the criminal charges they bring.
  • Because legislatures have become dissatisfied with the juvenile justice system, many juvenile violators have been brought into the adult criminal justice system.

Arresting and Charging Drug Offenders

Drug arrests in the United States can be made for possession of drugs (such as marijuana, cocaine, or heroin), dealing (selling) drugs, and conspiracy (an organized, joint plan) to sell drugs. After arrest, the prosecutor (who in some states is called a district attorney) decides whether to bring a charge and for what activity. Drug offenses can violate either federal or state laws. People charged with federal crimes face more severe consequences, such as stiffer penalties.

To determine what charges should be filed against the offender, the prosecutor looks at many factors: the criminal history of the defendant, the seriousness of the drug involved, and the quality of the evidence. A repeat offender (someone who has been arrested more than once) may be charged with an enhanced-penalty crime, meaning that the offender faces stiffer penalties. In most states, the district attorney makes the decision about such a charge. The vast majority of cases lead to guilty pleas, through some form of plea bargaining between the prosecutor and the defense attorney. In these agreements, which must be approved by the court, the defendant pleads guilty, often in return for a reduced punishment, such as a fine, court-ordered counseling, or a shorter prison term. Repeat offenders are at a disadvantage in plea bargaining and are less likely to get reduced punishment.

Another important factor in charging arrestees involves the level of cooperation provided by the defendant. The district attorney of- ten accepts a more lenient agreement for defendants who assist law- enforcement officers and/or testify in court concerning who sold them the drugs they possessed or resold. These plea agreements allow the police to target other offenders and also relieve the pressure on the courts. Plea-bargaining does, however, raise serious questions about the dangers of leniency. Citizens may worry that a person who de- serves a strict punishment is "getting off easy." Plea bargaining also raises questions, among defendants and their attorneys, about fairness. For example, a defendant may wonder whether he has gotten as good a "deal" as another defendant.

Sentencing Drug Offenders

If a person is convicted of a drug offense, the judge must apply a criminal sentence. However, judges now have little discretion (authority to make a decision) in applying a sentence based on the individual of- fender. Instead, judges must either apply a mandatory sentence or use

source: FBI, "Crime in the United States," annual Uniform Crime Reports. <>.

sentencing guidelines to determine whether a person will go to prison and for how long. Under mandatory sentencing laws, people convicted of particular crimes receive particular sentences. For example, people convicted of selling heroin or cocaine within 1,000 yards of a school receive at least a three-year prison term. People convicted of selling more than four ounces of heroin or cocaine receive at least a five-year prison term. These prison terms are called mandatory minimum sentences. Some mandatory sentencing laws require life sentences.

Since the 1980s, state and federal judges have had to follow sentencing guidelines, which shift the focus of sentencing from the of- fender to the offense. The guidelines place offenses in various categories. Once a person is convicted, there is a sentence for each category. Judges are allowed to increase or decrease sentences. These changes in sentencing are known as departures. Judges must have good reasons for a departure and must explain these reasons in the trial record. Upward departures—longer than usual sentences—are easy to achieve, as judges are allowed to consider any conduct by the defendant that is related to the crime. This conduct can include the circumstances surrounding the crime, offenses that were committed at the same time as the charged offense but were not charged, prior convictions, and acts for which the defendant was previously tried but acquitted. Judges have a more difficult time making downward departures. Decreasing a sentence is acceptable if the defendant accepts responsibility for the crime, or committed the crime to avoid a more serious offense. Prosecutors often successfully challenge decreased sentences on appeal.

Enforcement of Alcohol Laws

The penalties for drinking and driving have been increased since the 1980s. Mothers Against Drunk Driving (MADD), founded in 1980, has led the call for tougher penalties for offenders and repeat offenders. Currently, MADD is the largest anti-drunk-driving organization in the United States (and the world), with over 2 million members and supporters nationwide. MADD advocates canceling the licenses of drunk drivers, taking away their license plates and vehicles, increasingly stiff penalties for repeat offenders, and mandatory jail time for repeat offenders. The organization wants drunk drivers to pay for the cost of the system that arrests, convicts, and punishes them. MADD also wants businesses that serve alcohol to act more forcefully to prevent customers from becoming drunk. Many states have embraced these recommendations.

See Organizations of Interest at the back of Volume 2 for address, telephone, and URL.

Prosecutors have become more aggressive in prosecuting private homeowners and businesses selling liquor when they serve drunk drivers. Adults who serve alcohol to underage drinkers in their homes also risk prosecution if these drinkers are charged with driving under the influence or driving while intoxicated, or are involved in a serious traffic accident. Under most state laws, businesses that sell liquor to intoxicated people can be sued in civil court for doing so.

If the police suspect a person is driving while intoxicated, they have the authority to stop the driver and ask the driver to submit to a breath test analysis on the spot. The driver is free to decline taking the test, but this usually results in an automatic suspension of the driver's license. This suspension is based on implied consent laws, which are civil rather than criminal. Under these laws, holding a state driver's license is a privilege, and with that privilege comes the driver's agreement (consent) to take such a test. The failure to take the test breaks this implied consent.

Drivers who have been pulled over by police on the suspicion of driving while intoxicated face two alternatives: They can take a breath test, risking that a high reading will lead to criminal charges. Or, they can refuse the breath test and lose their driving privileges immediately. In the late 1990s, some states, including New York and California, enacted laws that made refusing a breath analysis test a crime. In these and several other states, legislators concluded that the penalty of license suspension was not severe enough.

Prosecutors can make more serious charges if the blood alcohol concentration (BAC) of the individual is above a certain figure. In addition, if the person has been convicted of previous drunk driving charges, the person can be charged in some states with a felony, the most serious type of crime. If convicted, repeat offenders now face long jail sentences. Many jurisdictions also place convicted drunk drivers under house arrest. These offenders must wear electronic monitoring devices to make sure they are not driving a motor vehicle or using alcohol.

The Prosecution of Juveniles

Since the early 1900s the juvenile justice system has tried to treat juvenile offenders differently than adult criminals. The juvenile system's goal was to rehabilitate young offenders rather than punish them. The law defines a juvenile as a person who is not old enough to be held responsible for criminal acts. In most states and at the federal level, this age threshold is set at 18. However, some states set the threshold at 17 and a few go as low as 16. Depending on their age, young people accused of a crime are charged in adult court or are required to appear in juvenile court.

However, when a juvenile commits a serious violent crime, different rules apply. In most jurisdictions, the juvenile is automatically referred to adult criminal court. Another possibility is that the prosecution will be allowed to ask to have the youth tried in adult court. Therefore, if a juvenile commits a serious drug crime, it is likely that prosecutors will seek to charge the juvenile as an adult. If a young person causes the death of another person while driving drunk, it is very likely that the juvenile will treated as an adult. This means that, if convicted, the juvenile will be subject to the same mandatory sentences and sentencing guidelines as an adult.


State and federal governments have strengthened their enforcement of drug and alcohol laws by increasing the penalties for many criminal violations and by making these penalties mandatory. As a result of mandatory sentencing and sentencing guidelines, the number of drug offenders in U.S. prisons has risen sharply. Penalties for drunk drivers and repeat drunk drivers have become more strict, while the amount of alcohol in the body necessary to trigger a criminal violation has been steadily lowered.

see also Crime and Drugs; Driving, Alcohol, and Drugs; Drug Testing Methods and Analysis; Law and Policy: Court-Ordered Treatment; Law and Policy: History of, in the United States; Prohibition of Alcohol; Violence and Drug and Alcohol Use.


A number of offenders have claimed that race is an unfair factor in the laws and in the application of mandatory sentences. They point out, for example, that sale and possession of crack cocaine are treated more harshly than sale and possession of powder cocaine. People of color are charged more frequently with crack cocaine offenses, while whites have been mainly charged with the sale and possession of powder cocaine. Despite these claims, most courts have dismissed these charges of unfairness based on race.

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Law and Policy: Modern Enforcement, Prosecution, and Sentencing