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

Abstract

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 substances.” 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. Additionally, 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.