Cruel and Unusual North Carolina Drug Trafficking Laws

Drug laws in North Carolina are notoriously harsh, in part because relatively small quantities of drugs can result in trafficking charges that create mandatory minimums even for people who have never been in trouble with the law before.

One of the quirks of North Carolina law that makes its drug laws even harsher than some other states is the fact that mixtures of drugs with non-active or filler ingredients are not distinguished from a quantity of pure drugs.

So, for instance, 4 grams of pure heroin, which is quite a lot of pure heroin, is treated the same as the total weight of 4 grams of pills, including filler. It doesn’t matter that the opiate in the pills may be far less in weight than 4 grams. The state crime lab weighs the entire pill or combination of pills get a total weight, and if that weight exceeds 4 grams, the person is likely to be charged with trafficking in opiates, requiring a mandatory minimum of 70 months in prison (unless substantial assistance is provided).

The results are draconian.

Justice Paul Newby, a former prosecutor, writing for the majority in State v. Ellison, has upheld the constitutionality and legality of the state’s trafficking laws, in spite of the clearly brutal results.

This case presents the question whether N.C.G.S. § 90-95(h)(4) of the North Carolina Controlled Substances Act, N.C.G.S. §§ 90-86 to-113.8 (2011), applies in cases involving prescription pharmaceutical tablets and pills. Subdivision 90-95(h)(4), the opium trafficking statute, explicitly provides that a defendant’s criminal liability shall be based on the total weight of the mixture involved. Because tablets and pills are mixtures, we conclude that defendants were properly sentenced under the opium trafficking statute. Accordingly, the decision of the Court of Appeals is affirmed.

The decision, however, did not address issues related to the Eighth Amendment to the United States Constitution. The decision merely focused on the state laws, and held that the law is unambiguous in making the entire weight of the pill count against the defendant.

There is a viable argument to be made that these laws create cruel and unusual punishments. The mere unlawful possession of 14 pills containing an opiate – hydrocodone, for instance – can create violate the Constitution’s prohibition against “cruel and unusual punishments.”

State courts have previously held that sentences within the presumptive range of structured sentencing. But in Graham v. Florida, the Supreme Court held in 2010 that proportionality is a central feature of the Eighth Amendment’s ban on cruel and unusual punishments. Punishments that are disproportionate to the crime are unconstitutional:

For the most part, however, the Court’s precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime. The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

The Court’s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.