26 March 2013

Another Example Of Insane Drug Sentencing Laws

On March 20, 2013, University of Colorado police arrested a twenty-three year old student with selling a single tablet of Vyvanase (an amphetamine based ADHD drug) to a twenty-one year old student who was also arrested at CU-Boulder based upon a campus employee's report.  The student selling the pill was arrested on suspicion of "unlawful sale of a controlled substance, a Class 3 felony."  The student buying the pill was arrested on suspicion of "possession of a controlled substance", a Class 6 felony.

As explained at length below, the sale charge is stunningly serious given the nature of the act.  Other class 3 felonies (subject to somewhat stiffer sentences due to special aggregavating provisions in the case of violent crimes and sex offenses) are:
* armed robbery,
* forcible rape,
* attempted second degree murder,
* aggravated assault causing serious bodily injury,
* kidnapping of an adult for ransom or with a deadly weapon that does not involve rape or robbery,
* arson involving a building or occupied structure,
* residential burglary while armed or involving an assault on a resident,
* theft of more than twenty-thousand dollars,
* incest involving one's own child or an incestuously related relative under the age of ten years,
*child neglect causing death, or
* pimping a child.

In all likelihood, if these young men don't have criminal records, and white male CU-Boulder student of those ages probably don't, they will receive the most or almost most lenient treatment available under Colorado law if they don't grossly bumble the process or get struck with a real hard ass in the prosecutors office or on the bench (neither of which is likely in Boulder County).  Deferred prosecutions, probation, fines, or sentences actually served of less than three years are far more likely in this particular case.

But, the fact that a prosecutor's unfettered decision to press charges rather than accept a plea bargain to a lesser charge or permit a deferred prosecution, and a judge's decision upon receiving a guilty plea or upon a conviction of these charges for up to sixteen years in prison, followed by five years mandatory parole and a fine of up to $750,000 is authorized by Colorado law for this offense shows how deeply broken Colorado law is on this score. 

The Controlled Substances Act in Colorado and under federal law does not accurately link sanctions to culpability.  A better rule would treat selling drugs as a purely economic offense comparable to theft in sanctions for particular dollar amounts involved (at least where no harm arising from tainted drugs or harms to minors from using illegal drugs arises), and would treat any level of personal illegal drug use or possession as a mere misdemeanor.

A more appropriate sentence

I have made the case repeatedly that normatively appropriate sanction an "honest" sale of an illegal drug (i.e. a sale to an adult who knows what he is purchasing of an untainted drug of that type) should have a punishment commensurate with the economic gain received by the person selling the drug on the same scale as theft (whose lowest tier is less than $500 and whose highest tier is $20,000 or more), or something tied to that scale.

In this situation, a $5 sale of a single tablet of a prescription drug (that probably cost him $1 to purchase from a pharmacist) to someone without a prescription would be a class two misdemeanor.  If the seller was proven to have made $20,000 (one can quibble over whether gross receipts or profits are most comparable to theft value) of prescription drugs, a class three felony charge might be justified, but not for this petty $5 informal transaction.

Posession of illegal drugs for personal consumption, likewise, should always be no more than a class one misdemeanor.

Indeed, in this case, the more serious offender is probably the kid taking the drug without a prescription, and not the one making a quick $4 selling a lawfully obtained pill.  A person with a possible drug problem is a bigger threat to society than someone committing a petty economic crime as a favor to friend.

In Colorado, the presumptive sentence for a class one misdemeanor is six to eighteen months of imprisonment and/or a fine of $500 to $5,000. The presumptive sentence for a class two misdemeanor is three to twelve months imprisoment and/or a fine of $250 to $1,000. Punishments of this magnitude are a far better fit to the crimes.  Fines and/or probation would be an authorized alternative in either case and would probably be a better sanction in both cases.  Misdemeanors also carry far fewer collateral consequences than felonies.

The legally authorized consequences under current Colorado law

In Colorado, a deferred prosecution, of up to two years under probation-like conditions, if allowed by the prosecutor's office, would allow a defendant to escape a felony conviction.  But, the prosecutor's office is never required to grant a deferred prosecution.

The base sentence for the class three felony of selling a prescription drug in the same class of prescription ADHD drugs without a prescription (even a $5 sale) in Colorado is four to sixteen years in prison followed by five years of mandatory parole, and a fine of $3,000 to $750,000, plus a variety a significant court costs, and a variety of civil disabilities while incarcerated and on parole.  See generally Section 18-1.3-401, Colorado Revised Statutes.

The base sentence for the class six felony of possesion of a prescription drug of that class without a prescription is twelve to eighteen months in prison followed by a mandatory period of parole for twelve months, together with a fine of $1,000 to $100,000, and the same civil disaiblities.

If a person with noo prior criminal record pleas guilty to the crime, or is convicted after a trial, a judge may impose probation, a fine and probation or community corrections, a fine without probation, a sentence of incarceration as short a two years or as high as thirty-two years based on extraordinary circumstances, at least in the case of first time offenders.  With good behavior, prison sentences for non-violent offenses can be significantly reduced (by about a third).

Any felony conviction for a drug offense is grounds for deportation of a legal immigrant (such as someone present in the U.S. on a valid student visa) and disqualifies a person for life from most federal financial aid for higher education programs, as well as a variety of other disabilities

(If a federal prosecutor had brought the same charges, the mandatory minimum sentences would be far more severe although a "safety valve" provision would probably apply in this particular case to mitigate the penalty somewhat).

Likely outcomes

The likelihood that the Boulder district attorney's office would offer up a deferred prosecution in a case like this one is significant, particularly given that it was a campus police rather than police department arrest that the school administration probably sincerely wishes that it hadn't made in the first place.

Alternately, a guilty plea to misdemeanor drug possession or some other misdemeanor offense (disorderly conduct, for example) is a plausible option.

With a guilty plea, a probation sentence and $3,000 fine would be typical for a $5 prescription drug sale by a first offender.  Upon a conviction, a four year sentence of incarceration and $3,000 fine would be typical for a $5 prescription drug sale and an extraordinary mitigating circumstances reduction to as little as two years in prison wouldn't be unthinkable, but probation would be a fairly unlikely sentence.

But, if the defendant made an unconditional guilty plea or was convicted at trial, he would have only the slimmest odds of success on an appeal of a sentence to a fine of $750,000 or less, or of incarceration for sixteen years or less, even if there was no obvious reason pertinent to his particular case that he should be at the high end of the presumptive range.

No comments: