By Taylor Knopf
Under North Carolina law, someone caught with up to 3.9 grams of heroin will face a Class I felony, some fines and spend six to 12 months behind bars. But someone caught with 4 grams of heroin will face a Class F felony, a $50,000 fine and a mandatory minimum of 70 months in prison.
That fraction of a gram makes a huge difference. And right now, there’s nothing a judge can do about mandatory minimum sentences for drug crimes.
That could change.
In the midst of the opioid crisis, state lawmakers are taking a closer look at how the judicial system handles drug offenses. State leaders and law enforcement officials have repeated the mantra: “We cannot arrest our way out of this drug epidemic.”
When the legislative task force on Sentencing Reforms for Opioid Drug Convictions met Tuesday, there was interest in changing the state’s mandatory minimum sentencing guidelines to allow judges more discretion.
Some states have amended their mandatory minimum laws to include a “safety valve” which allows a judge to dissent from the mandatory minimum sentence if the defendant meets certain criteria.
At the federal level, that safety valve is very limited, said Daniel Landsman with Families Against Mandatory Minimums (FAMM). If a gun is involved or the defendant is the leader of a drug peddling operation, he would not qualify for anything outside the mandatory minimum sentence. But in places such as Oklahoma, the safety valve is much broader, Landsman said.
“There are still no violent criminals or sex offenders, but judges have a little more leeway to consider various things,” he said.
Those things could include substance use disorders or mental health diagnoses. If North Carolina takes up this kind of legislation, it would be up to state lawmakers to dictate that criteria.
A case against mandatory minimums
FAMM has tracked mandatory minimum laws by state and found that 35 states have amended or eliminated them over the past 15 years. North Carolina, with its mandatory minimums in place, is in the minority.
Mandatory minimums don’t actually deter crime and do not incapacitate drug dealers, Landsman argued.
He said that criminals are deterred by the certainty of getting caught, not necessarily the length of the punishment awaiting them. Most don’t know how long they will spend in prison for their crimes, he said.
“And just because a drug dealer is put away doesn’t mean they stop dealing drugs,” Landsman said.It’s a whack-a-mole situation, he said. One drug dealer goes to jail, another pops up. Police arrest one, and others will just take his place.
Mandatory minimums can also create “substantial injustice” for some, Landsman said.
In some cases that could take the primary breadwinner away from a family for five years, leading to adverse effects for the kids, he said. It could also mean long-term incarceration of someone with a substance use disorder — which the medical community classifies as a chronic disease — instead of enabling that person to seek treatment.
“We want to return a little discretion back into the courts because when you cast a wide net — as you often do with mandatory minimums — there has to be a way to separate the minnows from the sharks,” Landsman said. “That’s what the safety valve would allow for.”
Drug dealers and users
Much of Tuesday’s discussion centered around the differences between a drug user and a drug dealer, as well as the various levels of drug dealers.
According to N.C. Department of Justice staff, there are large-scale drug traffickers who bring substances into the United States in bulk. Then there are gang leaders who package and distribute the substances. Most in the room agreed that these types of dealers should be punished more severely.
But then there are the local and street-level dealers, who are frequently drug users too.
“There is a pretty fine line between users and dealers,” Rep. Craig Horn (R-Weddington) said.
“We’ve already come to the conclusion that we cannot arrest our way out of this drug business, but where does the deterrence come from? Where is the break point with regard to a dealer or profiteer compared to a drug-addicted individual?” he asked. “We want to direct people who need help to help and incarcerate the folks that are exacerbating the problem.”
There were a number of public safety officials in the committee Tuesday who immediately opposed the idea of repealing North Carolina’s mandatory minimums, including two prosecutors, Department of Justice staff and Secretary of Public Safety Erik Hooks.
“I think we need mandatory minimums for those who really deserve it. There are people out there who deserve to be in prison,” said Ernie Lee, district attorney for Duplin, Jones, Onslow and Sampson Counties. “And I deal with repeat offenders every day.”
Committee chair Rep. Greg Murphy (R- Greenville) reminded the group that they are tasked with making recommendations to the General Assembly by December. He added that they will likely try to put those recommendations into statute next year, during the legislative long session.
“We want to find the sweet spot between keeping people out of jail who need treatment and still maintaining a deterrent for drug crimes,” he said.
Murphy asked how everyone felt about introducing safety valve legislation. Lee and Hooks were both on board.
“I would agree that a safety valve would be something we could work with to get it right,” Hooks said.