Trimming the Elements to Make the Law a Lie

Iowa Champion Charles Kenville posts a complaint about the unfairness of drug threshold levels in Iowa:

Because the threshold level for a mandatory 25 year prison sentence on methamphetamine charges is so low (five grams), prosecutors have unconscionable power over a defendant’s fate during plea bargaining…

The injustice with the low threshold is that the person trafficking TEN POUNDS of methamphetamine doesn’t see any more prison time than the low level user/dealer he has as a customer.  The B felony applies to weights between 5 grams and 5 kilograms (about 11 pounds).  How does that structure make any sense?  When a person buys seven grams and turns around to sell a gram or two to support his own habit, he puts himself in the same boat as the ten pound dealer.  Try telling the prosecutor that only three of the seven grams you possessed were actually going to be delivered so it should be a C felony and not a B.  They won’t bite.

He notes that there is a similar problem with crack cocaine thresholds, and then proposes a solution:

The class B felony thresholds need to be more uniform, and more importantly, higher for “crack” and meth.  Whether your policy is one of interdiction and prosecution, or education and treatment, you need to sort out the true drug traffickers from the low level user/dealers. The only way to do that is to have higher, realistic thresholds for increased penalties.

Like many people who fight in the front lines against the travesties of the War On Drugs, Kenville’s vision is limited to what seems realistically possible. Pie-in-the-sky wishes for greater justice do him no good. For pundits sitting on the sidelines, such as myself, reality is less of a barrier.

So, although I’m sure having “higher, realistic thresholds” would help, I think a better and clearer way to “sort out the true drug traffickers from the low level user/dealers” would be to require that for some one to be convicted of drug trafficking, they are found not only to possess drugs but are actually caught trafficking in drugs.

But that’s not how it works. Quantity, not activity, is all that matters.

[Update: According to Charles Kenville’s comment below, I misunderstood his post. In Iowa, they still have to prove trafficking. That’s not the case in some other states, so my comments would still apply elsewhere.]

This is part of a trend in criminal law that both fascinates and upsets me. I haven’t quite figured out a coherent way to think about it, but right now I’m calling it “trimming the elements” of the crime. (There may be an established term for this trend, but I haven’t stumbled across it yet.)

To prove a crime in court, the state has to prove every element of the crime. For example, in a DUI the prosecutor might have to prove that the defendant was (1) operating a vehicle, (2) had consumed alcohol, and (3) was impaired by the consumption of alcohol.

That third element is a little tricky to prove—it requires some form of testing that will hold up in court—so most states have a law against drinking while driving, which eliminates the need to prove impairment. That makes it a little easier, but there’s still the problem that a police officer has to observe someone drinking while driving. That can take time and effort, and police departments are loath to work harder than necessary. So a lot of states have eliminated the element of drinking by passing laws against having open containers of alcohol in the passenger area of car.

Now, all a cop has to do is find an open can or bottle anywhere in the car and he can bust the driver. Advocates of such laws want you to think of young punks passing around a fifth of Jack, but you’d be just as guilty if you were the completely sober designated driver for a night of drunken revelry and one of your friends hid a flask of booze inside his coat, or if you were driving a friend home from dinner out and she was bringing home the leftover bottle of wine from the restaurant.

Kenville’s problem with the drug laws seems to be a variation on this trend. Catching drug dealers in the process of actually selling drugs is hard work, so the laws have been tweaked to remove the need to prove the actual sale, in this case by specifying that mere possession of a sufficient quantity is proof of intent to sell.

It’s also not usually necessary to prove an exchange of money for drugs to prove a sale, because that would require extra work. Merely giving drugs to someone is usually enough to be arrested for drug dealing. If you bring some pot to a friend’s house and share a joint, you may be a drug dealer.

The end result is that a convicted drug dealer may not actually have dealt any drugs. In effect, legislators have made the law itself a lie.