My colleague Jeff Welty recently wrote about S.L. 2023-123 and changes to our death by drug distribution laws. He mentioned changes to the mandatory drug trafficking fines for certain drugs there, but I wanted to follow up on that point with the details. The new law, with new fines for certain controlled substances, takes effect on December 1, 2023. This post examines the coming changes to drug trafficking fines. Consistent with my defender-focused role, it also explores potential constitutional issues defenders might consider raising in cases where the new fines apply.
Current Opiate/Opioid Trafficking Fines. G.S. 90-95(h) lays out a scheme of mandatory fines that typically accompany a trafficking conviction. The amount varies depending on the specific drug at issue and rises with each level of trafficking. Most relevant for our purposes, current law imposes the following fines for each level of trafficking in opiates or opioids:
- Level I Trafficking (between 4 – 13. 9 grams) = $50,000.00
- Level II Trafficking (between 14 – 27.9 grams) = $100,000.00
- Level III Trafficking (28 grams or more) = $500,000.00
These are mandatory minimum fines. The sentencing judge lacks discretion to waive or reduce them (at least absent a finding that the defendant provided substantial assistance or qualified for relief under the First Step Act, or a determination that imposition of the fine would be unconstitutional).
The New Fine Amounts. The numbers listed above will soon change in a significant way for certain drugs. Under the revised G.S. 90-95(h), if the trafficking offense involves heroin, fentanyl, carfentanil, or any mixtures or derivatives of those substances, the fines will be:
- Level I Trafficking (4 – 13.9 grams) = $500,000.00
- Level II Trafficking (14 – 27.9 grams) = $750,000.00
- Level III Trafficking (28 grams or more) = $1,000,000.00
If the case involves other types of opioids or opiates, then the former, lower fine amounts will still apply. For offenses committed before December 1, 2023, the older fine amounts will also still apply. State v. Whitehead, 356 N.C. 444 (2012) (holding that the defendant must be sentenced under the law that existed at the time of the offense). But for trafficking crimes involving any of the three specified controlled substances committed on or after December 1, 2023, the new, higher amounts will apply.
Are the New Fines Constitutionally Excessive? Excessive fines are prohibited under the Eighth Amendment to the U.S. Constitution. This limitation applies to the states. Timbs v. Indiana, 139 S. Ct. 682 (2019). A parallel protection exists in Article I, sec. 27 of the N.C. Constitution, and the state and federal rights are analyzed under the same standard. State v. Sanford Video & News, Inc., 146 N.C. App. 554, 557 (2001).
A fine is constitutionally excessive when the amount is grossly disproportionate to the seriousness of the offense. U.S. v. Bajakajian, 524 U.S. 321, 336 (1998). While a finding of gross disproportionality is rare, defenders might argue that the new fines meet that standard on the facts of an individual case, particularly for the lower levels of trafficking. Only once has the U.S. Supreme Court held that a fine or forfeiture was grossly disproportionate. In the Bajakajain case, the defendant attempted to transport over $350,000.00 in cash out of the county without reporting it in violation of federal law. The statute at issue called for a maximum punishment of six months in prison and a maximum fine of $5,000.00. There was no other evidence of criminal conduct relating to the cash (in fact, the money had been legitimately earned). In addition to these factors, the Court pointed to the “relatively minor” harm caused by the crime. Id. at 339. On the facts of the case, a majority of the Court found an Eighth Amendment excessive fines violation.
Compared to the reporting crime at issue in Bajakajain, heroin or fentanyl trafficking is a much more serious crime inflicting a much greater human and societal toll. According to the North Carolina Division of Health and Human Services’ s Opioid and Substance Abuse Dashboard, the state lost around 11 people a day in 2022 to drug overdose. More than 36,000 lives were lost to drug overdoses between 2020 and 2022. Many (if not most) of those deaths were attributable to heroin, fentanyl, fentanyl derivatives, or drug mixtures containing those drugs. Prosecutors will likely point the magnitude of the harm involved in distributing these specific substances to defend against any challenge to the new fine amounts.
Still, it seems that there would be an outer constitutional limit on the amount of the fine for trafficking in these drugs under the facts of an individual case. In Timbs v. Indiana, 139 S. Ct. 682 (2019), the defendant was convicted of having sold law enforcement a total of $385 worth of heroin in two transactions. As a consequence of his conviction, he was ordered to forfeit his Land Rover, valued at around $42,000.00. While the U.S. Supreme Court in Timbs did not decide whether the fine was grossly excessive, the trial court on remand ultimately ruled for Mr. Timbs, finding that the amount violated the Eighth Amendment—a decision ultimately affirmed by the Supreme Court of Indiana. State v. Timbs, 169 N.E.3d 361 (2021).
Drug Value. The value of the drugs seems likely to be a factor in determining whether a fine is excessive. A gram of heroin cost around $420 in U.S. in 2021, according to the United Nations Office of Drugs and Crime. If we adjust for inflation and assume a gram of heroin is now worth $600, four grams of the substance—the lowest amount at which trafficking liability can attach—is worth around $2,400. Under our amended law, that amount of drugs will trigger a $500,000.00 fine, a financial penalty more than 200 times the value of the drugs. The value of the drugs is of course not the only consideration, but it may be a factor and useful point of comparison in the gross disproportionality analysis.
Other Potential Factors. In addition to the seriousness and harm of the crime and the value of the contraband, other factors may inform the analysis. The Indiana Supreme Court in Timbs took a totality of circumstances approach, examining the overall sentence for the offense and the defendant’s degree of culpability in addition to the gravity of the crime and the amount of fine. State v. Timbs, 169 N.E.3d 361, 368 (2021). Under that approach, a person addicted to drugs who is acting as a mere “runner” in a drug distribution scheme (for instance) would warrant different treatment from the person directing the scheme.
Ability to Pay. The defendant’s ability to pay also plays a role in the analysis. See Sanford Video & News, Inc. at 559-560 (considering the defendant’s finances and ability to pay as part of the analysis). Perhaps the new fine amounts are not grossly disproportionate for a wealthy defendant, or for one who has reaped enormous profit from the drug trade. But where the defendant lacks the ability to pay, federal and state constitutional protections may require a departure from the otherwise mandatory fines.
Advice to Defenders. Defense counsel should consider objecting to the imposition of the new fine amounts on federal and state constitutional grounds. Ask the trial court to conduct a hearing on whether the fine is grossly disproportionate in light of the defendant’s individual circumstances and the facts of the case. Counsel should be prepared to present evidence of the defendant’s culpability for the offense, the value of the drugs, the impact of the overall sentence on the defendant, the defendant’s other financial obligations, and any other circumstances relevant to the excessive fines analysis. Argue that the fine must be waived or reduced as a matter of the defendant’s constitutional rights to be free from excessive fines under the specific facts of the case. Recall too that even after the imposition of a mandatory fine, nothing prohibits a judge from granting relief from that obligation on the back end under G.S. 15A-1363 and Rule 28 of the General Rules of Practice.
I hope everyone has a safe and happy holiday this week. I can be reached as always at dixon@sog.unc.edu for any questions, comments, or feedback.