Drug Sentencing

Theoretical and Policy Background

The goals of sentencing for drug offenses are commonly based in ideas of deterrence and incapacitation. In theory, the threat of criminal punishment deters people from possessing illegal drugs as well as dealing them. For those who are not deterred, criminal punishment serves to restrain (incapacitate) them in a physical way, for example, by keeping them in prison so they lack access to drug [Page 230]markets in the free world. Likewise, when people see the pain meted out to drug users and dealers through criminal sentencing, fear of receiving similar pain should deter the public from engaging in drug offenses.

These goals are particularly difficult to achieve in the case of drugs, however, because of market factors. As long as consumer demand for illegal drugs remains high, suppliers become available to fill vacancies left when existing suppliers (dealers) are incapacitated via imprisonment. Sentences that are based on type and quantity of drug do very little to disrupt demand or the lure of quick wealth among potential dealers, particularly in impoverished communities.

Another potential goal of sentencing is rehabilitation, but until recently that goal has been given relatively little attention with regard to drug crimes. Rehabilitation includes approaches such as treatment programs for substance abusers. The “war” metaphor that has been so potent in drug policy tends to embrace rehabilitative approaches quite sparingly.

There are more policy alternatives for structuring sentencing for drug offenses than for violent or property offenses. Policy prescriptions directed at sentencing can have major economic ramifications, as well as impact on particular communities. For example, among state prisoners, in 1980 there were approximately 19,000 inmates (6% of total inmates) incarcerated for drug offenses (Mauer, 1999). By 2003, largely as a consequence of the War on Drugs, this figure rose to approximately 251,000 (20% of all inmates; Mauer & King, 2007). Recently, about 25% of Black inmates and Hispanic inmates are incarcerated for a drug offense, compared to 13% of White inmates (Sourcebook of Criminal Justice Statistics Online, 2002).

Finally, in contrast to the utilitarian emphases in sentencing, retributive values also come into play. Retribution focuses on a kind of quid pro quo: The offender must be punished because of the evil he or she has inflicted on society. Because interpretations of drug use as evil have varied historically, retribution is somewhat more difficult to apply when sentencing drug offenders than when sentencing violent or property offenders. One central tenet of retribution is proportionality of punishment: The punishment must “fit” the degree of evil of the crime, and similar offenders must be punished similarly. Proportionality has been one of the most debated issues in drug sentencing.

State-Level Sentencing

Sentencing processes vary from state to state, and for state-level drug offenses there is considerable variation in the quantity of criminal punishment imposed from one state to another.

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