The Anti-Drug Policies of the 1980's: Have They Increased the Likelihood for Both Wrongful Convictions and Sentencing Disparities?

• Author: James B. Halsted
• Published date: 01 September 1992
• Date: 01 September 1992
• DOI: http://doi.org/10.1177/088740349200600302
• Subject Matter: Article

CJFR,

VOL.

6,

NO.

3/92,

pp.

201-228

OIUP

The Anti-Drug Policies

Of

The

1980’s:

Have They

Increased The Likelihood For Both Wrongful

Convictions And Sentencing Disparities?

James

B.

Halsted

Abstract

University of South Florida

New statutory schemes enacted

to

support

the

“War

on

Drugs” policies

of

the

1980s

are being enforced in

a

manner which is increasing the likelihood

of

a

greater number of wrongful convictions. This study examines these new

anti-drug statutes by analyzing how and when the American criminal justice

system may be incarcerating marginally culpable and even innocent defendants

due to the easier convictability

of

those prosecuted under the new statutes.

One new crime created by these statutes is “trafficking in controlled sub-

stances.’’ An accused can be convicted under this powerfully sanctioned

crime whenever the prosecution proves that he

or

she is only in “constructive

possession”

of

a

statutorily designated amount

of

a

controlled substance.

The significant change embodied

in

the new crime of “trafficking”

is

that

it has reduced the amount of proof which used to be necessary

to

convict

an

accused person

of

the

old drug dealer’s crime, “possession

of

drugs with

the intent to distribute.”

In

“trafficking” statutes, the seminal element of the

older crime has been omitted. This omission has facilitated convictions. Ad-

ditionally, this study uncovers statutorily built-in sentencing disparities among

the punishments which judges are forced to impose on those convicted

of

“trafficking” versus the punishments which judges have the discretion to

impose

for

other equally serious felonies.

Every American president since Richard Nixon has declared

a

“war

on

drugs.” Each suggested that America’s problem with illicit drugs is

“epidemic.”

In

every instance, one of the proposed solutions to America’s

drug problem has included

an

increase in the severity of criminal sanctions

for drug offenders, especially for drug dealers.

Yet because of American prison overcrowding and the attendant federal

court early release orders, past political solutions of the

1960s

and the early

1970s

to

“lock up drug dealers for longer periods” proved to be unsuccessful

20UCJPR

during the late

1970s

and the early

1980s.

This policy failure was due in

great part

to

the new “good time” and “gain time” correctional statutes enacted

by state legislatures during this period.

This failure surfaced when the application of the “lock em up” policy

resulted in

an

unintended situation after convicted drug dealers were sentenced

and then behaved themselves in prison. They served but

a

minimal percentage

of the time they were sentenced to by the trial judge; they were released

early under the good time

and

gain

time

laws. As a consequence, convicted

drug dealers were perceived by the general public to be serving unacceptably

short lengths

of

time in prison.

This phenomenon has been labeled

as

the Department of Correction’s

“revolving door.”

In

response, many state legislatures enacted new war

on

drugs

laws

during

the

1980s.

One of the most significant legislative responses

to

the “revolving door” problem was to replace the old crime of

the

1960s

and

1970s,

“possession of drugs with

the

intent to distribute,” with

a

new

statutory crime called “trafficking in controlled drugs.”

The new “trafficking” crime is different from the older crime

it

replaced

in two significant ways:

(1)

the new offense has reduced the amount of

evidence necessary to convict

a

suspected drug dealer for “dealing

in

drugs”;

and

(2)

the

sentences attached to the crime of “trafficking in drugs’’ often

are “mandatory minimum” sentences. These special sentences result

in

greatly

enhancing the length of the convicted drug dealer’s sentence. Furthermore,

this change has increased the actual time the defendants are required to serve

in prison.

Thus

the political consequences of enacting these new “trafficking”

crimes, in part, seem to have had their desired effects.

In

spite of the apparent successes of this statutory change, an unintended

problem has arisen. One consequence of these statutory changes is that con-

victions

for

“trafficking” are being obtained by the prosecution in some

cases where

the

factual evidence suggests innocence.

The reason for the increase in wrongful convictions in these cases is

embodied in the definitions

of

the elements of “trafficking.” They are strict

and narrow ones. Trial judges’ instructions

to

juries

on

the definition

of

the

crime of “trafficking”

are

rigid. Yet the definition is applied even if this

strict interpretation is contrary to the will of the trial judge. Such

a

strict

and

narrow definition has had the effect of decreasing the amount of evidence

necessary to prove “trafficking”; and this reduction may ultimately be respon-

sible for

an

increase in

the

number

of

wrongful convictions on trafficking

charges against certain marginally culpable

or

even innocent defendants.

An

Overview

Of

The

Problem

Of

Wrongful Convictions

Wrongful convictions are not

a

new catastrophe challenging the structures

of the American criminal justice system. Over

160

years ago,

a

great American

jurist opined that one nightmare

of

the principles which support the vision

of

the American criminal justice system is that defendants may be adjudicated

wrongfully. Such

a

possibility, said Judge Learned Hand, has always caused