History Proves Harsher Drug Penalties Only Makes Matters Worse
Stories of tragedy linked to drug use have saturated the media landscape. Politicians have whipped up a frenzy around marijuana, while parents wring their hands over the fear that their children could easily succumb to addiction. Congressional hearings have become commonplace, replete with impassioned pleas and dire warnings.
One representative sounded the alarm, stating, “All one needs to do is skim through the headlines of the past week to realize the increasing grip of ruthless drug dealers on our youth.” This call to action served to bolster support for legislation that would enforce stern mandatory minimum sentences for drug offenses. While this might seem like a scene from the 1970s or 80s, or even more recent times, given the current legislative landscape with numerous states and the federal government pondering — and sometimes passing — stricter penalties for the use and sale of substances like fentanyl and its derivatives, the legislation in question — the Boggs Act — was actually signed into law by President Harry Truman in 1951 and stayed in effect until 1970.
As we grapple with the grim reality of approximately 100,000 overdose deaths annually in the 2020s, the result of the illegal synthetic drug crisis, it can be tempting to believe that imposing lengthier, harsher sentences may deter sales and, consequently, save lives. Grieving parents describe their children’s untimely deaths as “poisonings” and urge the government to treat fentanyl as a “weapon of mass destruction.” These devastated families call for dealers to be penalized with prison terms equivalent to those for murder and demand the implementation of what are currently termed “drug-induced homicide” laws.
However, the recent history of mandatory drug sentencing, both nationally and in New York, offers critical lessons for those who aim to stem the tide of the illegally manufactured fentanyl crisis.
As it stands, around 30 states and the federal government have provisions that permit the prosecution of street-level fentanyl suppliers as murderers. At least five states mandate a life sentence. Just in the 2023 legislative season, bills related to fentanyl-related crimes were introduced in 46 states. For instance, in Tennessee, following the tragic overdose of three teenage girls in a high school parking lot, the 17-year-old lone survivor was charged with the murder of her classmates.
The anger and despair of parents in these situations is wholly understandable. However, the track record of stringent drug laws demonstrates that they have not substantially diminished the drug supply, decreased addiction rates, or lowered overdose deaths. In fact, drug arrests might increase the risk of overdose and burden people struggling with addiction with criminal records, thereby reducing their chances of recovery by making them less employable.
Our history of implementing — and later amending — severe mandatory drug sentencing laws illustrates their ineffectiveness.
Consider the Boggs Act, which required two to five years for a first offense, five to 10 years for a second offense, and 10 to 20 years for a third offense. The law didn’t distinguish between drug use and sales, or between marijuana and heroin. By 1955, it was evident to lawmakers that the legislation was not having the desired effect. They pointed out that the U.S. had the highest rate of addiction in the Western world and laid the blame on China for supplying heroin. Despite this, penalties were further increased in 1956. Yet, drug use among teenagers and young adults continued to surge, paving the way for the tumultuous drug scene of the 1960s. Approximately 90% of individuals born during the peak of the baby boom admit to having at least experimented with illicit drugs.
By 1970, there was bipartisan agreement that the Boggs Act was a failure. Despite this, New York State’s moderate Republican Governor, Nelson Rockefeller, chose to ignore its ineffectiveness. He first attempted to enforce lengthy periods of residential treatment for people suffering from addiction in 1962. But by 1973, he reversed his stance. “In this state, we have allotted over $1 billion to every form of education against drugs and treatment of the addict through commitment, therapy, and rehabilitation,” the governor declared in his annual address to the legislature. “Let’s be honest: We have achieved very little permanent rehabilitation and have found no cure.”
At the time, New York City was wrestling with a surge in crime and increased heroin addiction, a crisis exacerbated by deindustrialization, social service cuts, and the dwindling tax base resulting from so-called white flight.
The state legislature enacted what became known as the Rockefeller drug laws in 1973. These laws prescribed a 15-year-to-life sentence, even for a first offense, for possession of four or more ounces or sales of two or more ounces of heroin, cocaine, or marijuana. The sentencing was deliberately more severe than for rape or murder because drug offenses were viewed as crimes against the entire community.
However, these laws did not reduce drug use or crime rates. In response to the harsh penalties, dealers began employing children to distribute drugs. A 1978 study by the Drug Abuse Council and the New York City Bar Association found no decline in heroin use and no significant change in other crime and drug-use rates compared to those in comparable states. New York’s prison population ballooned from 12,000 in 1972 to over 60,000 in 1992, and corrections spending swelled to roughly 25% of the state’s general fund operations in the mid-1990s, up from 10% of the budget in the early 1980s.
By 1997, although Black and Latino individuals made up less than a quarter of the state’s population, they represented 94% of prisoners serving felony sentences for drug crimes. Marijuana was removed from the list of punishable substances as early as 1979, once white college students began facing severe penalties.
By the mid-1980s, New York City had emerged as one of the primary hubs of crack cocaine use and distribution in the country, with the murder rate peaking in 1990 at over triple the current rate. Arrests surged, the court system was overwhelmed, and drug markets merely shifted from one neighborhood to another or resorted to pager and phone sales when police scrutiny intensified. Almost half of Americans born in the early 1960s admit to having tried cocaine at least once. (As a personal note, I was one of them, and I narrowly avoided a 15-to-life sentence under the Rockefeller laws for selling cocaine during my addiction, probably due in part to luck and likely because I was a white college student.)
By every conceivable measure, Rockefeller’s crackdown was a failure. Yet, despite the overwhelming evidence, Congress reintroduced mandatory minimum sentences for cocaine in 1986, imposing a five-year prison term for possession with the intent to sell five grams of crack cocaine or 500 grams of powdered cocaine. The law was made even more severe in 1988, allowing a 20-year maximum sentence for even simple possession. Prior to this legislation, Black individuals sentenced for federal drug crimes served an average of 11% more time than white individuals. Within four years, they were serving 49% more time.
The Rockefeller drug laws were finally repealed in New York in 2009. By this point, there was a renewed bipartisan consensus that mandatory minimums were ineffective. In 2010, President Barack Obama signed a bill that reduced federal mandatory minimums for new crack convictions. The reform was made retroactive by a second bill signed by President Donald Trump in 2018.
Mandatory sentencing also failed to curb overdose deaths.
Rewritten, based on an article in the NYTimes
