What Makes a Drug Crime a Federal Offense?

Yesterday’s Wall Street Journal reported that the Bush administration is seeking an 8.3 percent increase in spending for the federal Bureau of Prisons to $4.66 billion, making it the largest item in the budget of the Department of Justice. Most of the money will be going to lock up federal drug offenders at a time when state prison incarceration rates have slowed significantly. So how does someone arrested for drugs end up in a federal penitentiary?

While most drug arrests are made by local police, anyone arrested for any drug offense can end up in the federal system because any drug offense is considered both a state and federal crime. One and a half million people were arrested in the United States for drug crimes in 1999; about 20 percent of those arrests were for sale or manufacture, and the rest were for possession. If you were one of those 1.5 million, there are a few sure paths to ending up in the federal system. One is to get arrested by a federal officer. That could entail anything from being caught smoking marijuana at a national park to being picked up in a drug bust by the Drug Enforcement Administration. Another good way to end up in the federal system is to have someone inform on you: Someone facing a federal drug charge can get leniency by identifying other players. Someone arrested by local law enforcement could end up in the federal system because of decisions made in private between state and federal prosecutors–and there is no appeal if a case is handed over to the federal authorities.

While some states, such as New York and Michigan, have draconian drug sentencing laws, the federal system is notorious for the severity of its mandatory minimum sentences for possession of even small amounts of drugs. In addition, federal prisons have essentially abolished parole, which has led to huge growth in the federal prison population. Thirty years ago, only 16 percent of the federal prison population was in for drug charges. Today, it’s nearly 60 percent. And since the mid-1980s, when the crack epidemic hit, the federal government has dramatically increased its number of prisoners. In 1986, the year that the federal mandatory minimum drug statutes were passed, the federal prison population was 40,000. Today it is about 150,000. While far more people are in state facilities on drug charges–about 400,000 to 500,000–by comparison they make up between 20 to 25 percent of that prison population.

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Explainer thanks Eric Sterling of the Criminal Justice Policy Foundation, Monica Pratt of Families Against Mandatory Minimums Foundation, and Jenni Gainsborough of The Sentencing Project. Click herefor a list of federal mandatory minimum drug laws.