When most people hear the word “trafficking,” they envision tractor-trailers, cargo ships or airplanes smuggling massive quantities of drugs hidden in secret compartments within, to be distributed throughout vast networks of drug kingpins, mid-level brokers down to street corner dealers. While these scenarios do in fact occur, the vast majority of “trafficking” cases are much smaller in scale. While “trafficking” tends to conjure images of large distribution rings, under North Carolina law, “trafficking” simply refers to possession of a threshold quantity of a particular drug. General Statute 90-95 (h) (4) defines possession of just four grams of “opium, opiate, or opioid, or any salt, compound, derivative, or preparation of opium, opiate, or opioid … including heroin, or any mixture containing such substance,” as “trafficking in opium, opiate, opioid, or heroin.” Due to the combination of several principles of law, North Carolina’s drug trafficking laws, especially opioid trafficking, can result in a perfect storm of disparate and sometimes grossly excessive sentences.
The first of these bad laws resulting in the perfect storm that can lead to unjust results is that when a defendant is convicted of drug “trafficking,” the sentence that’s handed down is set by statute without consideration of the defendant’s prior criminal history or other relevant characteristics. In this regard, the “trafficking” sentencing scheme is different from every other type of criminal offense (with the exception of first degree murder which mandates life imprisonment or death). For example, a defendant with a clean criminal record, and whose mitigated situation and characteristics would otherwise warrant leniency, finds herself in the same boat as a defendant with a lengthy criminal record and whose case contains aggravated circumstances. By statute, 4-14 grams of opioids carries a mandatory 70-93 months imprisonment and a $50,000 fine. An amount of 14-28 grams carries 90-120 months and a $100,000 fine. An amount of 28+ grams carries 225-282 months and a $500,000 fine. These sentences are mandatory without regard to any other relevant sentencing factors.
The second of the perfect storm of bad laws results in the very real possibility that the above-referenced sentences can be multiplied by up to five times for the same transaction involving the same drugs. This is because the drug trafficking statutes prohibit the sale, manufacture, delivery, transportation or possession of a threshold quantity of drugs, and courts have interpreted each prong – sale, manufacture, delivery, transportation and possession – to be distinct, separate offenses. Thus, if an individual repackages 4 grams of heroin in a cellophane baggy (repackaging qualifies as “manufacturing” for some reason), gets in his car and drives to a customer’s house and exchanges the drugs for money, he can be charged, convicted and sentenced consecutively for the crimes of trafficking by possession, trafficking by manufacturing, trafficking by transportation, trafficking by delivery and trafficking by sale. While it is certainly fair to argue that selling the drugs is worse than mere possession and might warrant more severe punishment, this can hardly be said for the other ways to violate the trafficking statute. There is no legitimate purpose for adding six or more years to a defendant’s sentence because he put heroin in a bag, then adding another six or more years for transporting it, however short the distance.
The third of the perfect storm of bad laws is found in the statutory definition of trafficking, which prohibits not just a threshold quantity of a controlled substance, but also “any mixture containing such substance.” This means that the entire weight of the substance, regardless of drug purity, is used to calculate the weight. As such, 13.99 grams of 100% pure heroin carries the same sentence as 4 grams of heroin that has been cut to 10% (or less) purity, a far less deadly mix.
The fourth and final bad law that contributes to the perfect storm is also found in the statutory definition of “trafficking in opium, opiate, opioid, or heroin,” which includes “any salt, compound, derivative, or preparation” of same. This definition is so broad that courts have interpreted it to include opioid pain medications such as hydrocodone as well as extremely potent synthetic opioids such as fentanyl. This section of the definition, combined with the “any mixture containing such substance” provision, can lead to truly absurd results. For example, a typical tablet of the prescription pain medication Vicodin contains just 5 milligrams of hydrocodone and 500 milligrams of acetaminophen (Tylenol). However, because the trafficking definition is so broad and includes the weight of the entire substance, one Vicodin tablet counts as over half a gram of opioids. As such, 13.99 grams of 100% pure fentanyl (enough to kill thousands of people) carries the same sentence as nine tablets of Vicodin (about a day or two’s prescribed dosage for one person). Absurd.
No one can deny the scourge that heroin, fentanyl and the abuse of opioid pain pills have wreaked on society in the last two plus decades. They have caused countless overdose deaths and have touched families from all walks of life. Unquestionably, lawmakers should be doing more to fund treatment and education resources. But from a criminal justice perspective, the sheer scope of the epidemic can make it easy to advocate for severe sentencing laws for those who contribute to and profit off of the problem. The purpose of this article is not to weigh in on whether the statutory sentences for trafficking are too harsh or too lenient. Rather, its purpose is to shed light on how certain provisions of the trafficking laws can lead to disparate and absurd results. First, there is no rational basis for serving first offenders out of the same spoon as hardened criminals --recidivists who have already demonstrated that previous prison sentences were insufficient to deter future criminal behavior. Second, there is no legitimate purpose for giving sentencing courts the authority to double or triple a defendant’s sentence solely because she repackaged the drugs, or transported them from point A to point B. And finally, there is no justification for treating all opioids equally regardless of strength or purity. Under our current system, the most dangerous offenders can be treated similarly to the very victims upon which they prey. Our lawmakers need to study these issues and revise drug trafficking laws such that they are applied more fairly and effectively.