A new study by UNC professors raises questions about how we think about drug prosecutions. In Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, the authors reviewed more than 700,000 drug arrests and examined the race of the arrestee, the type of drugs involved, and the quantity of drugs involved. According to the authors, several important points emerge from the data: 1) The vast majority of all drug arrests are for marijuana; 2) The vast majority of all drug arrests are for very small amounts of drugs; 3) People of color are disproportionately arrested for drugs; 4) Such disparities are likely due to the types of drugs targeted by law enforcement and not due to any racial group’s greater involvement in the drug trade. Their study challenges the common rationale for prosecuting low level drug offenders: that in order to catch the big fish (the “sharks”), we must first catch the small fish (the “minnows”). “A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color.” Joseph Kennedy, Issac Unah, & Kasi Wahlers, Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, 52 U.C. Davis L. Rev. 729, 730 (2018) (citations hereafter are to the page numbers of the pdf file linked above). The authors argue that their data supports changing the way we approach drug prosecutions by eliminating felony liability in cases involving a gram or less of any drug. This post examines some of those findings. Continue reading
Tag Archives: drugs
An ancient maxim of the law is ignorantia juris non excusat, or ignorance of the law does not excuse. Put another way, it is presumed that the public knows the laws, and a defense of ignorance is typically not allowed. This principle is at the heart of the recent decision by the state supreme court in State v. Miller, ___ N.C. ___, (June 9, 2017). Continue reading →
Today, the court of appeals reversed a defendant’s drug convictions because the indictments identified the controlled substances in question using terms that are widely used to describe the drugs, but that are neither the chemical names listed in the controlled substance schedules nor – according to the court – “trade names” for the drugs. Because more and more drug cases involve pharmaceuticals that have many names, it is worth reviewing the case. Continue reading →
I’ve recently been asked several variants of this question: If a suspect sells drugs to an undercover officer on multiple occasions over a few days or weeks, can the drug quantities involved in each sale be aggregated to reach the trafficking threshold? That led me to spend some time looking at the more general issue of when multiple caches of drugs can be combined. This post lays out the law. Continue reading →
The court of appeals decided a case today concerning a fact pattern that arises frequently in drug cases.
State v. McKinney began when an officer received a “citizen complaint” about “heavy traffic in and out of” a particular apartment, with the visitors staying only a short time. The citizen stated that he or she had “witnessed individuals exchanging narcotics in the parking lot with the person who lived in the apartment.” The officer set up surveillance on the apartment, and promptly saw an individual arrive, enter the apartment, and leave six minutes later. Another officer followed the visitor and stopped him for a traffic violation. The visitor had a history of narcotics arrests, and his car contained $4,258 and a gallon-sized bag with just 7 grams of marijuana inside. His cell phone showed recent text messages that appeared to concern a drug transaction. For example, about half an hour before the visitor’s arrival at the apartment, he received a text message stating, “when you come out to get the money can you bring me a fat 25. I got the bread.”
The officer obtained a search warrant for the apartment based on the above information. He executed the warrant, finding drugs and guns. The defendant, the occupant of the apartment, was arrested and charged with several offenses. He moved to suppress, arguing that the warrant was not supported by probable cause, but his motion was denied. He pled guilty and appealed.
The court of appeals reversed, ruling that probable cause was absent. It focused on the lack of evidence concerning the inside of the apartment, noting that neither the officer nor the citizen “witnessed any narcotics in or about the apartment,” and stating that although the officer saw the visitor enter the apartment, there was “nothing in his affidavit which suggests that he saw [the visitor] carry marijuana or anything else inside.” The court cited State v. Crisp, 19 N.C. App. 456 (1973) (finding no probable cause where there was heavy traffic into and out of a residence at all hours and a traffic stop of a resident revealed drugs on his person and in his vehicle), and State v. Hunt, 150 N.C. App. 101 (2002) (finding no probable cause where an officer received complaints of suspicious traffic at a residence and verified that a large number of vehicles visited the residence briefly).
This strikes me as a fairly close case that another court might view differently. For example, a Texas appellate court found sufficient probable cause to search a residence based mostly on a stream of short visits to the residence plus nearby outdoor hand-to-hand transactions. Polanco v. State, 475 S.W.2d 763 (Tex. Ct. Cr. App. 1972). But in light of McKinney and its forbears, North Carolina officers should look for factors like an odor associated with controlled substances, a customer’s admission that he or she purchased drugs at the residence, or a controlled buy or other evidence from an informant.
When a person is arrested while in possession of drugs and is taken to the jail in handcuffs, may the person properly be convicted of possessing drugs in a confinement facility? The question has divided courts across the country. Last week, a majority of the court of appeals concluded that the answer is yes. State v. Barnes, __ N.C. App. __ (2013) (Ervin, J.) (McGee, J., dissenting).
Facts. The defendant was arrested for DWI, and while he was being processed at the jail, a bag containing 4.05 grams of marijuana fell out of his pants. He was eventually convicted of, inter alia, possession of marijuana at a confinement facility in violation of G.S. 90-95(e)(9).
Mens rea issue. The court first addressed the defendant’s argument that there was insufficient evidence to convict him, as there was no evidence that he intended to bring the drugs to a confinement facility. The court of appeals disagreed, unanimously on this issue, ruling that the offense is a general intent crime, requiring only that the defendant knowingly possessed drugs at a confinement facility, which he did.
Voluntariness issue. The issue that divided the court was the defendant’s argument that he did not commit the offense voluntarily, as he was brought to the jail under arrest. Although agreeing that criminal liability generally requires a voluntary act, the majority nonetheless rejected the claim. It noted that the statutory language defining the offense says nothing about voluntariness, and that the apparent purpose of the statute – to minimize drugs in jails – would be best served by giving it broad application. But the heart of the opinion stated that a majority of other jurisdictions (7 out of 10 cited in the opinion) have upheld convictions for similar crimes under similar circumstances, and endorsed the reasoning of many of those courts that “a defendant who is arrested with controlled substances in his possession has options other than simply taking the controlled substances with him into the confinement facility. For example, the defendant always has an opportunity to disclose the existence of these controlled substances to the arresting officer before he ever reaches the jail.”
Dissent. Judge McGee dissented on the voluntariness issue, reasoning that “[t]he officer took Defendant to the confinement facility. Defendant had no ability to choose his own course of action regarding his location,” and so did not voluntarily possess the drugs at the jail. As to the majority’s suggestion that the defendant had the option of disclosing the presence of the drugs before reaching the jail, Judge McGee concluded that requiring the defendant to do so would violate his Fifth Amendment privilege against self-incrimination. (The majority stated in a footnote that the defendant did not raise the Fifth Amendment issue but that, in any event, the dilemma was of the defendant’s own making and did not involve testimony under coercion.)
Further review. I couldn’t find any indication on the supreme court’s electronic docket that the defendant is seeking further review based on the dissent, but that would be a natural next step. So, stay tuned for further developments.
Side issue regarding conviction for simple possession. It’s worth mentioning briefly that the defendant argued, the State conceded, and the court of appeals ruled that the defendant should not have been convicted of both the confinement facility offense and the lesser-included offense of simple possession.
Earlier this week, United States Attorney General Eric Holder, speaking to American Bar Association, announced a policy change in how drug cases will be charged in federal court. This post summarizes Mr. Holder’s speech, the policy change it announced, and its likely impact in federal court. It then considers whether the new policy will have spillover effects in state court.
The Speech. Mr. Holder’s speech is available in full here. He said that it is “past time . . . to address . . . unwarranted disparities” in the criminal justice system. He declared the system “broken” and not “sustainable,” with an “unnecessarily large prison population,” citing relevant statistics. He stated that “too many Americans go to too many prisons for far too long . . . for no truly good law enforcement reason.” He observed that “young black and Latino men are disproportionately likely to become involved in our criminal justice system – as victims as well as perpetrators,” and referred to a study that concluded that “people of color often face harsher punishments than their peers.” Turning to solutions to the problems he perceived, he indicated that it was time for “rethinking the notion of mandatory minimum sentences for drug-related crimes” because they “generate unfairly long sentences.” Specifically, he “mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.” In all, it was a rather high-sounding speech that sounded like it marked a major shift.
The Policy. The policy changed announced in the speech was implemented by a memorandum to federal prosecutors. The memorandum is available in full here. Federal drug defendants are subject to mandatory minimum sentences if their crimes involved certain threshold quantities of drugs. See generally 21 U.S.C. § 841. For example, a defendant who sells more than 500 grams of cocaine faces a mandatory minimum sentence of five years, while one who sells more than five kilograms of cocaine faces a mandatory minimum of ten years. But those minimums apply only if the threshold quantities are alleged in the indictment. Under the new policy, drug quantity allegations will be omitted from a defendant’s indictment, and the defendant will not be subject to a mandatory minimum sentence regardless of drug quantity, if all of the following obtain:
- The offense did not involve violence, a weapon, serious injury, or a minor
- The defendant did not supervise or manage others in the commission of the offense
- The defendant has no “significant ties to large-scale drug trafficking organizations”
- The defendant has no “significant” criminal history, which “usually” will mean that the defendant has three or fewer criminal history points under the federal sentencing guidelines
Impact of the Policy. Despite the Attorney General’s powerful rhetoric, this strikes me as a rather minor change, for several reasons. First, many federal prosecutors were already using their discretion to omit drug quantities from indictments in less serious cases. Second, relatively few cases may meet all four criteria. In particular, federal prosecutors tend to focus on defendants who have significant criminal records or who play leadership roles in drug trafficking organizations. And third, the federal sentencing guidelines – which are advisory, but still widely followed by district judges in sentencing – were constructed around the mandatory minimums, so within-guideline sentences will often be at or above the mandatory minimum sentence that would have applied. I don’t want to wander too far into the weeds of federal sentencing. Interested readers can find a more detailed analysis along these lines here at the Volokh Conspiracy and in the comments to this post at Sentencing Law and Policy. All of that being said, some defendants will benefit from the new policy.
Spillover in State Court? One possible effect of the policy change is an increase in case volume in state court. Mr. Holder noted in his speech that United States Attorneys “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law,” because “[s]ome issues are best handled at the state or local level.” It may be that his new policy on drug cases will lead federal prosecutors to decline to prosecute some drug cases altogether, which would mean that more of those cases would end up in, or remain in, state court – perhaps including some cases involving large quantities of drugs. A second possible effect of the policy change would be indirect: some state actors could be inspired to mimic some of the federal changes at the state level, by ameliorating drug trafficking sentences. I doubt that this will happen in a systematic way in the near term. The General Assembly made significant changes to the law of sentencing in the Justice Reinvestment Act, but left trafficking alone. And Attorney General Cooper doesn’t supervise the district attorneys in the way the Attorney General Holder supervises the United States Attorneys, so there is no mechanism for top-down administrative change. But individual offices, and individual prosecutors, have virtually complete discretion in handling drug cases, and the broader movement to reform the criminal justice system of which Mr. Holder’s speech was a part may manifest itself at the local level in uneven and unpredictable ways. For those interested in the details of how that could happen, Jamie plans to post tomorrow about ways to dial down trafficking sentences under state law.
Drug trafficking offenses can lead to really long sentences, and not just because of the special minimums and maximums that apply to those crimes. Consider this example: My husband and I agree to grow marijuana. We grow and harvest 50 pounds of it. We then arrange to sell it to a street-level distributor. Finally, we drive it in a truck to the distributor, where we hand over the ganja in exchange for a pile of money. How many trafficking offenses have we committed?
The answer is SIX! They are:
- trafficking in marijuana by manufacturing
- trafficking in marijuana by sale
- trafficking in marijuana by delivery
- trafficking in marijuana by transporting
- trafficking in marijuana by possession
- and, the drum roll please . . . conspiracy to traffic in marijuana.
State v. Lyons, 330 N.C. 298 (1991); State v. Perry, 316 N.C. 87 (1986).
And that’s not all! The conspiracy to traffic is punished at the same level as a completed trafficking offense, not one level lower as it typically the case for conspiracy. See, e.g., G.S. 90-95(h)(1) and (i). Now add in those special minimums and maximums for trafficking offenses, run them consecutively and my husband and I are looking at some very serious time apart in prison. And we haven’t even gotten to the fines that apply to drug trafficking!
Compare that to plain old sale or delivery of a controlled substance. If I sell and deliver a controlled substance, it’s just one offense. State v. Moore, 327 N.C. 378 (1990).
As I indicated at the outset, trafficking offenses can really bite.
Cyclist Lance Armstrong has recently confessed to using performance enhancing drugs during each of his seven Tour de France victories. Public discussion has focused on whether his apology, during an interview with Oprah Winfrey, was genuine or not. I want to consider whether his conduct was criminal. (By “conduct,” I mean the doping and related activity, not the interview!)
There’s a North Carolina connection. This article observes that at Beech Mountain, near Boone, you can ride “the route Lance Armstrong used to train for his final Tour De France.” And in one of his autobiographies, Armstrong recounts a North Carolina ride that renewed his faith in cycling. (I think it was his first book, It’s Not About the Bike. As an aside, I think it’s a red flag when a person writes more than one autobiography.)
The full story of Armstrong’s systematic doping and his campaign to cover it up is told in this report from the United States Anti-Doping Agency, USADA. Briefly, the agency concludes that Armstrong masterminded “a massive team doping scheme, more extensive than any previously revealed in professional sports history” and engaged in a “fraudulent course of conduct that extended over a decade and leave no doubt that Mr. Armstrong’s career . . . was fueled from start to finish by doping.”
Obviously, Armstong and his foundation have also done a great deal of good, and the purpose of this post isn’t to assess Armstrong’s legacy. My personal view is that the doping and the lying are pretty much par for the course in professional sports, but that Armstrong’s willingness to threaten, sue, slander, and destroy the livelihoods of those who told the truth about his drug use will forever disgrace him.
Anyhow, the basic criminal law issues are these:
Perjury. Armstrong has repeatedly denied, under oath, using performance enhancing drugs. Fox News reports here that “Armstrong, by the USADA’s count, has made seven statements under oath . . . that could lead to criminal charges.” The facts seem to be quite clear-cut, but Armstrong may have some defenses unrelated to factual guilt, as I discuss below.
Obstruction of Justice. In addition to lying about his doping, Armstrong attempted to prevent others from telling the truth about his conduct and the conduct of others. He reportedly told one cyclist who testified in a doping case, “[y]ou made a mistake when you testified . . . I can destroy you,” told another witness that he would make his life a “living . . . hell,” and successfully used his stature within cycling to have another witness fired from his job. This type of conduct would support charges of obstruction of justice or witness intimidation.
Fraud. Armstrong received sponsorship money, race appearance fees, and prize money, all based in part on his representations that he was clean. He is already facing multiple civil suits alleging fraud, and criminal fraud charges, state or federal, may also be possibilities.
Controlled substance charges. Among the drugs Armstrong admitted using as part of his doping regimen was testosterone. Testosterone is a Schedule III controlled substance. Furthermore, it appears that Armstrong provided drugs to other riders on his team and/or pressured them to use drugs, meaning that he may be guilty of drug distribution and conspiracy, not merely simple possession.
Possible defenses or bars to prosecution. Some commentators that have considered the possibility of criminal charges against Armstrong have concluded that the statute of limitations is likely to bar prosecution. (For example, this Sports Illustrated article suggests that the statute of limitations may preclude any perjury or drug charges.) But those articles have generally focused on federal law, which has defined limitations periods for almost all criminal offenses. State laws vary. As readers of this blog know, North Carolina has no statute of limitations for felonies, and other states may also have long or no limitations periods. Given the many jurisdictions across which Armstrong’s conduct took place, including some foreign countries, it strikes me as likely that there are jurisdictions where prosecution remains possible. Furthermore, while it is true that the federal government not long ago publicly declined to prosecute Armstrong, that doesn’t pose a barrier to a new investigation. Jeopardy never attached, the government never entered into a non-prosecution agreement, and the available evidence now is very different. And of course, appropriate state or local authorities may also investigate.
To sum up, Armstrong’s doping-related conduct likely violated multiple criminal laws. I disagree with the comment by prominent defense lawyer Mark Geragos that “I am sure Lance’s lawyer has vetted [his confession to Oprah] and doesn’t see any criminal exposure.” It seems to me more likely that his legal team sees considerable potential criminal exposure, but simply concluded that confessing to Oprah wouldn’t make the danger any greater. Whether prosecuting Armstrong is a good use of resources is a separate question, but the legal basis for possible prosecution appears quite sound.
G.S. 90-95(a)(1) makes it a crime to knowingly sell or deliver a controlled substance to another person. As a general rule, the delivery of marijuana—a Schedule VI controlled substance—is a Class I felony. G.S. 90-95(b)(2). However, the statute provides that it is not a delivery to transfer for no remuneration less than 5 grams of marijuana or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such a substance. Id. This provision sometimes is called the “pot exception.” Here’s how it might apply: Two friends are sitting on a bench. One is smoking a joint. After taking a few hits, he passes it to his buddy, who does the same. No money changes hands. In this scenario, unless the joint is a monster-sized one, less than 5 grams of marijuana is likely to be involved. (Before you start pummeling me with questions and innuendo about how I know this, let me clarify: I googled it! Web sites with names like “Weedy” and “Grass City” and informed me that a joint typically contains less than 1 gram of marijuana.) But let’s get back to our example. In this scenario, there is no delivery because less than 5 grams of marijuana was transferred and no remuneration was involved. Of course, both friends are guilty of simple possession. And yes, for you zealous officers, possession of paraphernalia (the rolling paper) applies as well.
A recent case, State v. Land, addressed a couple of issues regarding this offense. In Land, the defendant gave Andrew Demaioribus, an undercover officer, a bag containing 2.03 grams of marijuana. He was charged with, among other things, delivery of marijuana and after being convicted he appealed. On appeal, the defendant first argued that the indictment charging delivery of marijuana was defective because it failed to allege an essential element of the offense. Specifically, he asserted that because he was charged with delivery of less than 5 grams of marijuana, the indictment was defective in that it failed to allege that he received remuneration. Over a dissent, the majority rejected this argument. It cited State v. Pevia, 56 N.C. App. 384, 387 (1982), for the proposition that G.S. 90-95 creates a single offense of delivery of a controlled substance, with no separate offense of delivery of marijuana. As a result, it concluded, an indictment is valid when it alleges, as here, that the defendant “did unlawfully, willfully and feloniously deliver to [a specified person] a controlled substance, to wit: marijuana, which is included in Schedule VI of the North Carolina Controlled Substances Act.” It continued, explaining that under Pevia the State can prove delivery of marijuana with evidence either (1) of a transfer of 5 or more grams of marijuana, or (2) of a transfer of less than 5 grams of marijuana for remuneration. It concluded: “Since the methods of proof set out in [G.S.] 90-95(b)(2) are mere evidentiary matters, they need not be included in the indictment.” The dissenting judge agreed with the defendant’s argument, noting that in State v. Partridge, 157 N.C. App. 568, 570 (2003), the court had vacated the defendant’s conviction of felony possession of marijuana because the indictment failed to allege the amount of marijuana that he possessed.
Notwithstanding this disagreement about charging language, all three judges agreed that the trial court erred by failing to instruct the jury that a transfer of less than 5 grams of marijuana for no remuneration is not a delivery. The trial court had instructed the jury as follows:
The Defendant has been charged with delivering marijuana, a controlled substance. For you to find the Defendant guilty of this offense, the State must prove beyond a reasonable doubt that the Defendant knowingly delivered marijuana to Mr. Demaioribus. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant knowingly delivered marijuana to Mr. Demaioribus, then it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt then it would be your duty to return a verdict of not guilty.
The court concluded that because the evidence showed a transfer of only 2.03 grams of marijuana, the trial court erred by not instructing the jury that in order to prove delivery, the State was required to prove that defendant transferred the marijuana for remuneration. However, the court found that the error did not rise to the level of plain error.
Obviously, because of the dissenting opinion, we’re likely to be hearing from the Supreme Court on the indictment issue. When that happens, I’ll be sure to give you an update.