I represented many people charged with drug offenses. While all the cases involved controlled substances, one indiscriminate label was not used for every offender. Instead, in both the legal and public eye, a basic distinction was made between sellers and users of drugs. Sellers deserved, and got, more punishment than mere users..

Furthermore, both the possessor and seller categories had gradations by amounts. The greater the quantity sold, the more serious the offense. If I told a colleague that I had just been assigned a “sale case,” the immediate response invariably was, “How much?” That meant how much was the weight of the drugs allegedly sold. The seriousness of possession cases, too, was measured by amounts, but for a different reason. Possessing more drugs was not necessarily worse than possessing a lesser amount if the drugs were to be used by the possessor, but the assumption was that a person possessing a large quantity of drugs was not likely just planning to use those drugs personally. Instead, the possession of the large amount indicated that the person was really a seller, Thus, because he possessed with intent to sell, he should be punished more like a seller than a user. Once again, both the law and popular culture tried to distinguish among the drug offenses.

In state court, I never dealt with what is often seen as a third category of drug offenders—the importer or the smuggler. Perhaps this category also includes the manufacturer of a drug—think the TV series Breaking Bad, or perhaps Walter White is a fourth category. We could simply call the smuggler or the meth cooker a “drug seller,” for they will sell their product, but that does not suffice. That label would lump the smuggler or the manufacturer with the street corner seller of heroin, cocaine, or meth, and we all know that the smuggler’s or manufacturer’s conduct is vastly different from a “clocker’s.”  (If you are not familiar with that term, or even if you are, I highly recommend Clockers by Richard Price.)

My point is that we almost instinctively make what seem like natural distinctions among drug offenses and do not put the same label on all offenders. This does not mean the gradations perfectly capture all the distinctions. For example, I represented a woman who was a user of drugs and, not surprisingly, a prostitute in what was then a scruffy part of Brooklyn. An undercover police officer “befriended” her and offered her $50 dollars if she would lead him to people that would sell him a kilo of heroin. After much beseeching by him, and after she made some inquiries, she led the cop to some major drug dealers in Harlem who sold a kilo to the cop. She was charged with acting in concert with the major drug dealer although all agreed she stood to get only $50 from the transaction. For that she got a life sentence.

The drug gradations may not have been perfect, but it is right, and seemingly natural, that we make these distinctions. We recognize that all the behavior concerning drugs should not be lumped together. But that has not been true for child pornography. (To be continued.)

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