ONE SHOULD NOT PAY FOR ALL--DRUG QUANTITY TRIGGERING MANDATORY MINIMUMS SHOULD BE INDIVIDUALIZED IN CONSPIRACY SENTENCING.

Author:Wildrick, Hunter R.
 
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"It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." (1) In the consideration of conspiracy drug offenses, the circuits have not yet come to a consensus as to whether an individualized or conspiracy-wide theory should be used to determine the quantity of drugs for each defendant required to trigger a mandatory minimum sentencing requirement. [2]

  1. introduction

    In the current political climate, harsh sentencing requirements for drug offenses is a fiercely-contested issue between dueling political parties. (3) Proponents argue that the benefit of lenient sentencing for nonviolent drug offenders is a lower rate of incarceration with fewer devastating effects on communities of color where longer sentences do not really deter crime to begin with. (4) Meanwhile, advocates of the maximum punishment strategy contend that directing federal prosecutors to "charge and pursue the most serious, readily provable offense in felony cases" fulfills the government's vital responsibility of keeping communities safe and protecting American citizens from corruption and harm. (5)

    Title 21 of the United States Code, section 841, which prescribes mandatory minimum sentencing requirements for defendants convicted of trafficking over a certain quantity of illegal drugs, is likely one of the most controversial provisions in the federal judicial system. (6) Often times, the crime that a defendant commits does not truly warrant the severe punishment that he or she is prescribed. (7) Cynthia Powell, a first-time offender, sold $300.00 worth of hydrocodone pills to an undercover police officer, for which she is serving a twenty-five year mandatory minimum sentence in Florida state prison. (8)

    At age 17, she dropped out of high school and gave birth to a daughter, Jackie.... [whose] father left when [she] was only a month or two old. On disability because of uncontrollable diabetes, Cynthia focused her life on raising her daughter and helping out with other family members' kids.... Jackie had a premature daughter.... When she was released from the hospital after five months ... Cynthia took on a major part of the responsibility of raising her. Over the years, Cynthia's diabetes worsened, and she began taking the prescription medication Lorcet, which contains hydrocodone, for severe pain in her legs.... An acquaintance of hers was working as a confidential informant[] for the police, and called Cynthia. She had the flu, she said, and she'd heard that Cynthia had a prescription for Lorcet. Cynthia refused, but the CI kept calling. Eventually.... [s]he sold 35 hydrocodone tablets and Soma tablets.... The Lorcet pills containing hydrocodone weighed 29.3 grams, just 1.3 grams above the weight necessary to trigger a 25-year mandatory minimum sentence.... The judge [said to her at sentencing], 'I'm sorry, Ms. Powell, there's nothing else I can do. It's not an easy thing, but I can't do anything else.' The mandatory minimum stripped [the judge] of all discretion. (9) The accused has a constitutional right to require the prosecutor to prove every element of the charged offense to the jury beyond a reasonable doubt. (10) The utilization of aggressive prosecutorial methods regarding mandatory minimums has sparked a debate amongst the circuits over the constitutionality of sentencing a defendant based on the quantity of drugs recovered from the entire conspiracy that he or she was involved in. (11) Since the Supreme Court held in Alleyne v. United States (12) that the constitutional right to proof beyond a reasonable doubt applies to facts triggering mandatory minimum sentences, there has been a shift in the circuits from the requirement that the prosecutor show conspiracy-wide drug quantity in order to invoke mandatory minimum sentences for all defendants involved to a defendant-specific burden of proof regarding the drug quantity. (13) In a post Alleyne world, it is likely unconstitutional to sentence a defendant in compliance with a mandatory minimum requirement if the quantity of drugs has not been proven beyond a reasonable doubt attributable to him as an individual, deterring exposure to jail time for an unforeseen quantity of drugs. (14)

  2. HISTORY OF U.S. DRUG POLICY AND APPLICATION OF APPRENDI AND ALLEYNE

    Drug policy has had a profound effect on the United States criminal justice system over the last forty years, largely emerging from President Nixon's declaration that drug abuse is "America's public enemy number one." (15) In October of 1982, Ronald Reagan addressed the nation during a radio broadcast and announced his intent to crack down on drug prosecutions, "We're making no excuses for drugs--hard, soft, or otherwise. Drugs are bad, and we're going after them ... we've taken down the surrender flag and run up the battle flag ... we're going to win the war on drugs." (16) Towards the mid-1990s, the perception of drugs in the United States began to shift in the direction of a more rehabilitation-friendly approach, leading to the expansion of drug courts, treatment programs, and alternative sentencing policies for drug offenders. (17)

    Both President Bush and Obama forged forward in the effort toward rehabilitating drug offenders--Bush pushing for increased funding for substance abuse treatment, and Obama declaring the war on drugs an "utter failure," reducing sentences for all drug offenses under the sentencing guidelines of the federal government. (18) Obama-era Attorney General Eric Holder asserted that prosecutors should decline to charge the quantity necessary to trigger mandatory minimums if a defendant's relevant conduct does not involve the use or threat of violence, the possession of a weapon, the trafficking of drugs to minors, or death or serious bodily injury, the defendant is not a supervisor of others within a criminal organization, tied to a large-scale organization, and the defendant does not have a significant criminal history. (19) Trump's presidency has brought about a sharp turn away from the ever-growing pattern of distancing the country from the war on drugs. (20)

    [U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. (21) Title 21, [section] 841 of the United States Code sets out the illegality of the manufacturing and distribution of controlled substances and specifies the mandatory minimum and maximum penalties associated with particular quantities of controlled substances. (22) The prosecutor may also charge a drug offender with conspiracy to commit those offenses, and subject them to the same penalties as if they had committed the offense that was the "object of the attempt or conspiracy." (23) In order to sentence a defendant to a penalty reflecting the controlled substance's weight, the quantity of that substance must be presented to the jury and proven beyond a reasonable doubt. (24)

    If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not--at the moment the [government] is put to proof of those circumstances--be deprived of the protections that have, until that point, unquestionably attached. (25) In Alleyne v. United States, the United States Supreme Court applied the Apprendi ruling to factors triggering a mandatory minimum sentence, holding that any fact "[e]levating the low end of a sentencing range heightens the loss of liberty associated with the crime" and therefore must be proven to the jury beyond a reasonable doubt. (26) The Court concluded that including every fact that was a basis for imposing or increasing punishment in the indictment was a well-established practice supported by widely recognized principles. (27) In the 5-4 decision by the Court, Justice Thomas extended Apprendi's requirement of proof to facts increasing the mandatory minimum of the offense, recognizing that the elevation of the low end of a sentencing range heightens the potential for loss of liberty:

    Just as the maximum of life marks the outer boundary of the range, so seven years marks its floor. And because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense. (28) As mandatory minimum sentences have the potential to vastly increase exposure to harsher verdicts and longer prison time, defendants charged with conspiracy to commit a drug violation face potentially daunting punishments if they are sentenced pursuant to the drug quantity attributed to the conspiracy as a whole. (29) Shortly after Apprendi was decided, courts were permitted to convict each individual conspirator for agreeing to participate in a drug conspiracy of a specified type and amount without proof that they reasonably should have foreseen the amount or type of all drugs involved. (30) Since the Alleyne decision, however, all of the circuits that have explicitly addressed the issue determined that there must be an individualized jury finding as to the quantity and type of drugs attributable to each individual conspirator in order to trigger a mandatory minimum sentence. (31)

  3. THE CIRCUIT SPLIT

    Although it is without dispute amongst the circuits that a drug quantity must be proven to the jury beyond a reasonable doubt, there is a disagreement surrounding the constitutional implications of sentencing a coconspirator based on the...

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