Drug Laws, Prosecution of

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Drug arrests in the United States involve a wide variety of controlled substances, including Marijuana, Co-Caine, Heroin, Phencyclidine (PCP), and others, and a number of different charges, including possession, dealing (selling), and conspiracy to sell. After arrest, the prosecutor, or district attorney, exercises the discretion to choose among this broad range of legal options in deciding whether to bring a charge and for what activity.

Drug offenses can violate either federal or state laws. Since the majority of arrests are made by local law-enforcement officials, most defendants are charged in state courts. The cases received by federal prosecutors, called U.S. attorneys, from such federal enforcement agencies as the Federal Bureau of Investigation (FBI) or the Drug Enforcement Administration (DEA), frequently involve more complex matters. However, the volume of federal drug prosecutions rose in the 1990s, as tougher federal drug laws and sentencing provisions led state prosecutors to refer these cases to federal jurisdiction. In addition, federal prosecutors have used the Racketeer Influenced and Corrupt Organizations Act (RICO) to prosecute drug traffickers and to confiscate property used in drug enterprises. The federalization of drug crimes has had a profound impact on the work of the federal courts and the budget of the federal prison system.

In determining what charges should be filed against the offender, the prosecutor looks to many factors: the criminal history of the defendant, the seriousness of the drug involved, and the quality of the evidence. Most states give the district attorney the discretion to charge an enhanced-penalty crime for a repeat offender.

The vast majority of the 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 fine, court-ordered counseling, or a lessened prison term. Repeat offenders face tougher agreements.

In deciding what plea to accept, prosecutors consider many of the same factors they did when they brought the original charges. A critical factor is the quality of the evidence. Many drug cases are very easy to prove, because the defendant purchased or sold the drugs directly to a police officer or because a search warrant leads to the discovery of drugs in an area controlled by the defendant. District attorneys face much more difficult challenges in convicting suspects involved in complicated conspiracy charges such as those associated with the shipment or distribution of drugs. In many drug prosecutions, motions to suppress evidence are filed by defense attorneys to determine whether the search that turned up the drugs was conducted in a legal manner. Rulings by the U.S. Supreme Court provide wider latitude to officers who have secured a search warrant.

Another important factor involves the level of cooperation provided by the defendant. The district attorney often 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 in the public's mind about the dangers of leniency; it raises other questions, among defendants and their attorneys, about equity and fairness. Additionally, narcotic officers and prosecutors often disagree about the outcome or the handling of a case. These differences are often mediated by task forces in which prosecutors with specialized drug experience are assigned to work with a select group of narcotics officers.

Generally less than 10 percent of drug cases go to trial. In a trial the police officer is a witness in the case brought by the prosecutor. By questioning the officer, the prosecutor, as lawyer for the state, elicits evidence designed to show that the defendant possessed or sold drugs.

Ultimately the judge determines the actual sentence. However, federal and state sentencing guidelines limit the judge's discretion. Many drug crimes carry with them mandatory minimum sentences. But commonly in a plea agreement or after trial, the prosecutor can modify the severity of the sentence by reducing the charge or by recommending that the court reduce the sentence. Across the country, and even within large counties, great differences occur in sentencing and in sanction recommendations.

Participants in the criminal justice system recognized that drug-related crimes should be addressed in different ways. The emergence of drug courts in the 1990s signaled a new way of prosecuting drug offenders. Drug courts seek to reduce drug use and associated criminal behavior by retaining drug-involved offenders in treatment. Drug courts divert drug offenders from jail or prison and refer them to community treatment. Defendants who complete the program either have their charges dismissed or probation sentences reduced. A 1994 federal law authorizes the U.S. Attorney General to make grants to state and local governments to establish drug courts. By 1999, 416 drug courts were operating in the United States, with over 270 more in the planning stages. These courts shift discretion from the prosecutor and place it with the judge, who has broad discretion in a drug court.

Federal and state prosecutors have also used asset forfeiture laws to attack drug traffickers. Forfeiture laws authorize prosecutors to file civil lawsuits asking a court for permission to take property from a criminal defendant that was either used in the crime or was the fruit of a criminal act. According to Department of Justice statistics, over 28,000 properties were seized in 1996, with a combined value of $1.264 billion.

Aside from civil forfeiture, prosecutors have also used non-criminal statutes and ordinances to attack drug crimes. For example, prosecutors may use public nuisance laws, zoning laws and public health laws to remove drug offenders from property where drugs are being used and sold. Though the legal action is addressed at the landlord or property owner, it has the effect of removing drug users and traffickers from apartments and houses. Increasingly, cities are condemning and destroying buildings that have been used as crack houses and such.

(See also: Exclusionary Rule ; Mandatory Sentencing ; Rockefeller Drug Law )


O' Meara, Kelly Patricia. (August 7, 2000). When Feds Say Seize and Desist. Insight on the News.

White House Office of National Drug Control Pol-Icy. (2000). National Drug Control Strategy: 2000 Annual Report. Washington, D.C.: U.S. Government Printing Office.

Tonry, M. (1997). President Clinton, mandatory minimums, and disaffirmative action. Tikkun. Nov-Dec 1997.

West's Encyclopedia of American Law. (1997). St. Paul: Westgroup.

Stephen Goldsmith

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