Rewrite Flawed Cocaine Statute

Criminal law for some serious offenses is based on intent. For example, someone who causes a vehicle accident in which another person dies might be charged with negligent homicide. But if prosecutors learn the driver intended to cause a crash, the charge probably would be upgraded to murder.

Intent apparently has nothing to do with some offenses involving illegal drugs, however. That is what the Ohio Supreme Court ruled, in effect, last week.

Charges and prison sentences in many drug crimes depend on how much of an illegal substance was in the offender’s possession. Many states stipulate simple “possession” charges if those arrested had quantities of drugs below certain limits. More serious “intent to distribute” charges result for quantities above those limits.

A case taken to the Ohio high court revolves around that difference.

In Ohio, people caught in possession of more than 100 grams of cocaine can be sent to prison for much longer terms than if they had less of the drug. A law rewritten fairly recently, in 2011, contains the provision.

But in writing the statute, Buckeye State legislators missed a crucial distinction, high court justices ruled by a 4-3 vote.

Often, the justices noted, people who buy cocaine are sold a substance that is adulterated with a variety of white powders, including baking soda. They are being given less pure cocaine than they are told by their suppliers. That can happen to consumers and to street-level pushers buying from wholesalers.

As written, the law pertains to quantities of pure cocaine, not the total amount of white powder sold under false pretenses as cocaine, the court held. A pusher arrested, tried and sentenced under the 100-gram rule may not fall under it if the substance in question was not pure cocaine — even if he believed it was.

That is absurd, of course. Drug dealers should not get breaks because what they were selling was not as pure as they may have thought. If they were selling a drug they claimed was pure cocaine, possession of 100 grams or more of it ought to open them to longer prison terms.

It is all a matter of intent, and in this case, the Ohio Supreme Court says that does not matter.

A rewrite of the law, inserting language acceptable to the court to make intent the key, ought to be a priority for state legislators.


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