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Secrets of the Texas Criminal Justice System and Your Rights
Almost all federal drug laws that prohibit the distribution of a controlled substance apply both to the drug in its pure form and to any “mixture or substance containing a detectable amount” of the drug. That phrase has caused confusion in federal courts. What a chemist thinks of as a “mixture” is not necessarily how the courts define the term. On occasion, a strict application of the term leads to absurd results.
Congress included the phrase “mixture or substance containing a detectable amount” in the drug laws because it recognized that many drugs are not sold in their pure form. For example, cocaine sold on the street is almost always “cut” with some other substance. By adding a cutting agent to the drug, the dealer increases the quantity that is available for sale and is able to make more money.
Congress decided that by basing sentences on the total weight of the product sold, regardless of its purity, more severe sentences would be imposed upon “high volume” dealers who were selling the most product to the most customers.
How Drug Sentences Are Determined
To implement its strategy of basing sentences on the amount of the product sold without regard to its purity, Congress decided that sentences should be determined by the weight of any “mixture or substance containing a detectable amount” the drug. For instance, if a dealer sells 50 grams of powder cocaine that is 99 percent inositol and 1 percent cocaine, the full 50 grams will be considered as the weight of the powder cocaine that the dealer distributed.
The logic that Congress followed arguably makes sense with regard to drugs, like cocaine, that are typically sold by weight. It makes no sense at all when it is applied to drugs, like LSD, that are sold by the dose. LSD is usually applied to blotter paper, each square representing one dose of LSD. Even though the blotter paper is a carrier for the drug, not a cutting agent, the Supreme Court decided that blotter paper is a “substance containing a detectable amount of LSD.”
Since a dose of LSD is measured in micrograms, the sentence is based almost entirely on the weight of the blotter paper. The irrationality of that sentencing scheme is even more obvious when a single dose of LSD is adhered to a heavier carrier, such as a gelatin capsule or a sugar cube.
Although the crimes are identical — distribution of one dose of LSD — the dealer who placed the LSD on a sugar cube is subject to a much longer sentence than the dealer who used blotter paper. The high-level dealer who sells LSD in its pure liquid form may receive a much lighter sentence under this scheme than the street dealer who sells a few doses.
Fundamental Unfairness of Some Drug Sentences
Although the LSD example makes a joke of the Congressional desire to impose similar sentences upon equally culpable offenders, the law is what it is. With the exception of certain drugs that are generally marketed as pills or tablets, mandatory minimum sentences are triggered by the entire weight of the product that is possessed or distributed if “any detectable amount” of that product is a controlled substance.
The Sentencing Guidelines follow the same rule, although some judges are more inclined than others to take purity into account when imposing a sentence. When they do, however, they are more likely to increase the severity of sentences imposed upon dealers selling a more pure form of the drug than they are to impose lenient sentences upon dealers who sell drugs that mostly consist of cutting agents.