Unintended Consequences Of The “WAR ON DRUGS”
Federal and state drug laws have changed substantially over the past several decades, but drug possession and other controlled-substance offenses can still carry serious criminal consequences in Illinois.
Beginning in the 1970s, the United States adopted increasingly aggressive policies aimed at combating the illegal drug trade. The period commonly described as the War on Drugs included expanded enforcement efforts, mandatory minimum sentencing laws, and other policies that contributed to a substantial increase in incarceration for drug offenses.
The consequences of those policies continue to influence discussions about criminal justice, sentencing, substance-use treatment, and incarceration. While federal and state lawmakers have enacted reforms over the years, drug crimes remain a significant part of the criminal justice system.
Quick Take: Drug laws in the United States have changed considerably since the height of the War on Drugs. Federal sentencing reforms have reduced some historical disparities, Illinois has legalized regulated adult-use cannabis, and problem-solving courts have expanded. However, possession, delivery, manufacturing, and trafficking of many controlled substances remain serious criminal offenses. The specific substance, quantity, charge, prior record, and circumstances of an individual case can all affect the potential consequences.
How the War on Drugs Changed Criminal Sentencing
During the 1980s and subsequent decades, federal and state governments adopted increasingly punitive drug laws. At the federal level, the Anti-Drug Abuse Act of 1986 created severe mandatory minimum penalties for certain drug offenses, including a 100-to-1 quantity ratio between crack and powder cocaine for purposes of triggering certain mandatory minimum sentences.
The Sentencing Project reports that drug sentencing policies adopted under the banner of the War on Drugs, including mandatory minimum and other punitive policies, contributed to a dramatic growth in incarceration for drug offenses beginning in the 1980s.
Historical Incarceration Growth
The figure often cited in discussions of drug-law incarceration is the increase from roughly 41,000 people imprisoned for drug-law violations in 1980 to approximately 453,000 in 2017. That figure is historical rather than a current count. More recent data show that the number of people incarcerated for drug offenses has changed since the period of peak incarceration.
The history is important because modern criminal justice reforms were, in part, responses to the consequences of those earlier sentencing policies. The changes did not eliminate federal or state drug laws, but they altered some sentencing rules and created additional mechanisms for sentence reductions and rehabilitation.
The Crack and Powder Cocaine Sentencing Disparity
One of the most significant examples of federal drug-sentencing reform involves the historical difference between crack cocaine and powder cocaine.
Under the federal law enacted in 1986, five grams of crack cocaine could trigger the same five-year mandatory minimum sentence that applied to 500 grams of powder cocaine. The resulting 100-to-1 ratio became a major focus of sentencing-reform efforts. The U.S. Department of Justice later described the disparity as a significant issue in federal sentencing policy.
Before 2010
Federal law used a 100-to-1 crack-to-powder cocaine quantity ratio for certain mandatory minimum sentencing thresholds.
Fair Sentencing Act
The Fair Sentencing Act of 2010 reduced the disparity from 100-to-1 to 18-to-1 and increased the quantities required to trigger certain mandatory minimum penalties for crack offenses.
First Step Act
The First Step Act of 2018 made the Fair Sentencing Act’s changes retroactive in qualifying cases, allowing certain people sentenced under the earlier crack-cocaine rules to seek sentence reductions.
The First Step Act did not automatically reduce every sentence imposed under the former crack-cocaine rules. Eligibility depends on the applicable federal offense and statutory requirements, and sentence reductions require judicial consideration. The Federal Bureau of Prisons explains that the First Step Act made the Fair Sentencing Act retroactive and created a procedure through which qualifying defendants can seek sentence reductions.
The First Step Act and Federal Drug Sentencing Reform
Congress enacted the First Step Act of 2018 as a broad federal criminal justice reform law. Among other provisions, it changed certain federal drug-sentencing rules and made the Fair Sentencing Act’s crack-cocaine sentencing changes retroactive.
The law also changed certain enhanced mandatory minimum provisions for repeat drug offenders. According to the Federal Bureau of Prisons, the First Step Act increased the threshold for prior convictions that trigger certain enhanced mandatory minimums and reduced some of those enhanced penalties.
Important Distinction: Federal sentencing reform did not make illegal drugs legal. The Fair Sentencing Act and First Step Act changed particular federal sentencing rules. A person charged with a federal drug crime can still face substantial penalties depending on the offense and applicable federal statutes.
The U.S. Sentencing Commission continues to track the implementation and retroactive effects of the First Step Act and Fair Sentencing Act.
Illinois Has Taken a Different Approach to Cannabis
Illinois has made significant changes to its cannabis laws. The Illinois General Assembly enacted the Cannabis Regulation and Tax Act, which established a regulated system for adult-use cannabis and made certain possession and use lawful for adults who meet the statutory requirements.
Under the Illinois statute, beginning January 1, 2020, a person who is 21 or older and complies with the Act’s requirements may legally possess, use, purchase, obtain, and transport cannabis within specified possession limits. The law also establishes restrictions and penalties outside those permitted circumstances.
What Changed
Illinois legalized regulated adult-use cannabis for people 21 and older, subject to statutory possession limits and other restrictions.
What Did Not Change
Illinois did not legalize possession or distribution of all controlled substances. Heroin, cocaine, fentanyl, methamphetamine, and numerous other controlled substances remain regulated under criminal law.
It is therefore important to distinguish cannabis legalization from broader drug decriminalization. Illinois’ cannabis statute created a regulated legal framework for cannabis; it did not eliminate Illinois criminal laws governing other controlled substances.
Drug Possession Is Still a Serious Criminal Charge in Illinois
Although Illinois has legalized adult-use cannabis under specified circumstances, other drug possession offenses can still result in serious criminal charges.
Controlled Substance
The type of substance alleged can affect the applicable offense and potential penalties.
Quantity
The amount alleged can be an important factor in determining the applicable criminal charge and sentencing range.
Prior Record
Prior convictions can affect charging, sentencing, and eligibility for certain alternatives or programs.
Case Evidence
Searches, seizures, statements, laboratory testing, and other evidence may affect how a drug case is evaluated.
For that reason, someone accused of a drug crime should not assume that a general description of Illinois drug laws accurately predicts what will happen in an individual case.
Drug Crime Defense Requires an Individual Case Review
A drug crime investigation can involve constitutional questions as well as questions about the alleged substance and the circumstances surrounding its discovery.
Depending on the facts, a criminal defense attorney may investigate whether law enforcement had legal grounds to stop or search a person, vehicle, residence, or container; whether statements were obtained lawfully; whether the prosecution can establish the required elements of possession or another offense; and whether the physical evidence was properly collected and tested.
Review the Charge
Determine exactly what offense has been charged and which statute applies.
Examine the Evidence
Review the circumstances surrounding the alleged possession, search, seizure, statements, and physical evidence.
Evaluate Resolution Options
Depending on the circumstances, possible resolutions may include dismissal, negotiated dispositions, probation, diversion, treatment-based programs, or trial.
Protect Your Rights
A defense attorney can advise the accused person about the applicable law, evidence, potential penalties, and available legal options.
The Role of Criminal Defense Attorneys in Drug Cases
Drug crime cases can involve complicated statutory, constitutional, and evidentiary issues. The consequences can also depend heavily on facts that may not be apparent from the initial accusation.
An experienced criminal defense attorney can review the circumstances of the arrest, examine the prosecution’s evidence, identify potential legal issues, and determine whether the case may be appropriate for negotiation, a treatment-focused program, or litigation.
The appropriate defense strategy is different in every case. A possession case involving a first-time defendant may present very different issues from a case involving a prior record, a large quantity of drugs, allegations of delivery, or federal prosecution.
Baku Patel and Patel Law’s Drug Crime Defense Practice
The criminal defense attorneys at Patel Law, P.C. represent people accused of drug crimes and other criminal offenses in central Illinois.
Attorney Baku N. Patel has extensive criminal-defense experience, including experience with felony and misdemeanor matters. Patel Law’s criminal-defense practice includes representation involving drug possession and other drug-related charges.
Facing a Drug Crime Charge?
A drug charge can affect your freedom, criminal record, employment, and future opportunities. If you or someone you know has been charged with a drug offense in Champaign or elsewhere in central Illinois, obtaining legal advice early can help you understand the charge and the potential defenses and resolutions available in your case.
Frequently Asked Questions About Drug Crimes in Illinois
Did Illinois legalize all drugs?
No. Illinois legalized regulated adult-use cannabis for adults 21 and older who comply with the Cannabis Regulation and Tax Act. Other controlled substances remain subject to Illinois criminal laws.
Did the Fair Sentencing Act eliminate the federal crack and powder cocaine disparity?
No. The Fair Sentencing Act of 2010 reduced the federal quantity ratio used for certain mandatory minimum thresholds from 100-to-1 to 18-to-1. The First Step Act of 2018 subsequently made the Fair Sentencing Act’s changes retroactive in qualifying cases.
Can a drug possession charge be a felony in Illinois?
Yes. The classification and potential consequences depend on the substance, amount, applicable statute, and other circumstances. A person should have the specific charge reviewed rather than assuming every possession case carries the same penalty.
Can police searches be challenged in a drug case?
Potentially. Depending on the circumstances, a defense attorney may examine whether officers had sufficient legal grounds for a stop, search, seizure, or arrest and whether the resulting evidence can legally be used in the case.
Does Illinois have alternatives to incarceration for some drug cases?
Depending on the charge and circumstances, some defendants may qualify for probation, diversion, treatment programs, or problem-solving courts. Eligibility is case-specific and not every defendant or offense qualifies.
Sources and Illinois Drug Crime Resources
Illinois General Assembly: Cannabis Regulation and Tax Act
Illinois General Assembly: Public Act 101-0027
U.S. Sentencing Commission: Fair Sentencing Act of 2010
U.S. Sentencing Commission: First Step Act of 2018
Federal Bureau of Prisons: First Step Act Overview
Federal Bureau of Prisons: First Step Act Frequently Asked Questions
The Sentencing Project: Mass Incarceration Trends
National Association of Criminal Defense Lawyers: Drug Law Reform
Patel Law, P.C.: Drug Crime Defense
Patel Law, P.C.: Attorney Baku Patel’s Experience
Charged With a Drug Crime in Illinois?
Patel Law, P.C. represents clients facing drug possession, drug distribution, and other criminal charges in central Illinois. An attorney can review the specific charge, evidence, and circumstances of your case and explain the legal options that may be available.
