During the nationwide get-tough-on-crime mood of the 1980s, Delaware legislators reined in judges’ sentencing authority on certain drug crimes, perceiving judges’ rulings to be often arbitrary, inconsistent, or too soft.
Two decades later, the mood and the policy priorities have changed—in Delaware and around the country.
Faced with the high prison costs and modern law-enforcement needs, the General Assembly is revisiting the state’s drug code and attempting another major overhaul of the penalties for drug sales and possession.
A number of other states have revised their statutes over the last several years or are in the process of doing so.
Delaware's drug-sentencing measure, House Bill 443, would roll back many of the mandatory minimum sentences imposed a generation ago and recalibrate other parts of the code to toughen it. The bill easily cleared the House last week on a 31-5 vote, and is headed for the Senate.
While some lawmakers and other observers have concerns about the impact of the proposed changes, the bill’s sponsor, Representative Melanie George (D-Bear), calls it “an amazing compromise.” (See Drug bill: treatment vs. prison.)
The effort brought together an unusual array of interests, including the Department of Justice, the Public Defender’s office, various police agencies around the state, and advocacy groups such as Stand Up for What’s Right and Just, or SURJ. (See Drug bill: creating consensus.)
“There are instances, individual cases, where a person would be much better off in society, working, getting treated, paying child support, contributing to the tax base rather than being a drain on society, costing us money in jail,” George said.
“It’s an acknowledgement that one-size-fits-all justice is really not justice,” George said. Giving courts and judges more discretion in sentencing is better than “passing a broad brushed law that says everybody gets this minimum mandatory sentence, no matter what.”
Eliminating mandatory minimums, specifically those for first-time offenders, is one component of the bill. It also would make the possession of small quantities of drugs a misdemeanor rather than a felony.
SURJ Executive Director Joanna Champney agrees.
“There was general sentiment that folks who have drugs in their possession or maybe who are struggling with substance abuse addiction really aren’t the bad apples that we want to be going after,” said Champney. “A lot of law enforcement and public resources are spent on incarcerating drug offenders. So I think there was a general consensus that individuals who are dealing drugs are really the ones that are causing the violent crime and community problems and those are the folks we want to be focusing our resources on.”
Does the bill repudiate the get-tough approach that produced the mandatory minimum laws two decades ago? No, say its proponents. While it creates more judicial discretion in some areas, it also creates stiffer penalties in others, reflecting recommendations from the Drug Law Revisions Committee formed by the Attorney General’s office.
The tougher provisions include:
• increased penalties for drug dealers who resist arrest with force or violence or commit a drug crime near a school or park;
• a new crime for those who knowingly provide a dwelling for drug deliveries or possess a handgun or semi-automatic weapons along with drugs;
• stronger sentences for those who illegally deal in substantial quantities of prescription drugs.
The bill also maintains minimum prison sentences for drug felonies involving certain amounts of drugs or aggravating factors such as prior offenses.
Delaware Public Defender Brendan O’Neill told the House Judiciary Committee that the bill works on three levels: simplifying drug laws for those in the criminal justice system, imposing a logical structure on drug laws to provide consistency, and creating a clear difference between the treatment of drug users and drug dealers.
SURJ’s Champney explained the proposed simplification of the sentencing structure.
“The old scheme really allowed prosecutors to charge drug offenders with multiple mandatory minimums,” she said. “The new sentencing structure doesn’t allow for that. It’s a base charge with some aggravators tacked on, which would elevate the offense.
“I think it gives more transparency and legitimacy to the drug sentencing structure and aligns Delaware with some of the other states in our region and the nation with a more moderate approach to sentencing.”
The proposed overhaul does face some criticism.
Representative Dennis P. Williams (D-Wilmington North) believes elimination of mandatory minimums should not be the priority.
“We need to do more for prevention and treatment. In this state you can’t get treatment until you get arrested,” he said. “I don’t want to see a lessening of the charges on narcotics because when people buy that poison, they continue keep the drug dealer in business. And when the drug dealer continues to sell that poison, it’s a domino effect throughout the community. If we want to do something grandiose, like some people say this piece of legislation does, we need to start looking at treatment. That will stop the spread of narcotics.”
Rep. Williams, a former Wilmington police detective, did vote for the bill despite his concerns.
Representative Tom Kovach (R-Brandywine North) believes that in the effort to seek compromise, some issues slipped through the cracks in the 24-page legislation.
For example, current law elevates the charge for drug crimes committed within 1,000 feet of a school. The bill would have shrunk that zone to 300 feet, consistent with the buffer zone around parks.
Rep. Kovach flagged the issue, noting that “many of our junior high and high school children walk more than a mile to school.” The house passed Kovach’s amendment to maintain the 1,000-foot perimeter.
“Talking to law enforcement officials, making sure their concerns were addressed, I am happy with the outcome of this bill,” he concluded. “This is an advance. It really is a very well-thought-out compromise.”
Proponents did not cite studies projecting the impact of the proposed law on the size of Delaware’s prison population. But they suggest that’s not the only way to judge HB 443.
“It will allow us perhaps to target better, so that even if it is the exact same number of people in prison, there might be some different people, maybe some more deserving people,” said Andrews. “So if you have absolutely no impact at all on the quantity, you may have some impact on the quality.”
“There are a handful of people” prosecuted under the current mandatory minimums that would not be prosecuted under the proposed law. “While that only might be a handful of people, we’re talking about people’s liberty,” Kovach said.
“If this bill can make sure those people, their liberty will be preserved in the future, I think its a good bill as long as it balances fairly with protecting our children and society from drug users, and, more importantly, drug traffickers.”
Proposed easing of drug laws:
a felony with mandatory minimum sentence
no mandatory minimum for first-time offense with no aggravating factors
Possession of a controlled substance or paraphernalia
a Class A misdemeanor; Class A sentences may include up to 1 year in prison and a fine of up to $2,300
a Class B misdemeanor; Class B sentences may include up to 6 months in prison and a fine of up to $1,150.
Loss of driver’s license for misdemeanor drug conviction