Report on Mandatory Sentences - Law Reform Commission

worsening drug problem became more repressive. 232 This began with the imposition of ever-increasing
taxes on imported opium, followed by an outright ban on imported opium not required for medical use,
and culminated in the enactment of the Harrison Act 1914.
2.109 The Harrison Act sought to control domestic traffic in narcotics regulating the legal traffic in
narcotics and providing criminal sanctions for any illegal trafficking. 233 It has been noted, however, that
an unintended consequence of the Harrison Act was the closure of legitimate sources of supply to the
addict and a consequential growth in the black market. 234 With the repeal of Prohibition, organised
criminal gangs became more involved in the illegal distribution of drugs. The result was an expanding
drug problem between 1946 and 1960. In particular, a dramatic increase in drug use amongst minors
was a major inspiration for the enactment of the Boggs Act 1951. 235
2.110 The Boggs Act 1951 changed the penalty structure in two ways. 236 First, it made penalties for all
drugs offences uniform, no matter how trivial or serious the offence. Second, it made the penalties more
severe by introducing mandatory minimum prison sentences and increasing the maximum sentences. A
first offence became punishable by a sentence of not less than two or more than five years and a
maximum fine of $2,000. A second offence became punishable by a sentence of not less than five or
more than 10 years and a maximum fine of $2,000. A third or subsequent offence became punishable by
a sentence of not less than 10 or more than 20 years. In addition, the Act denied suspension of sentence
and any form of probation to a second or subsequent offender.
2.111 In 1956, Congress passed the Narcotics Control Act 1956 which further modified the sentencing
regime for drugs offences. It increased the severity of the sentences applicable to drugs offences 237 but,
unlike the Boggs Act 1951, it distinguished between serious and less serious offences. 238 In addition, it
provided for enhanced penalties for offences exhibiting certain characteristics. 239 Thus, for example, the
sale of narcotics to a person under 18 years of age became punishable by a minimum sentence of 10
years and a maximum sentence of life imprisonment or death. Furthermore, it provided that suspension
of sentence, probation and parole would be denied to even the first-time offender convicted of a serious
drugs offence. 240
2.112 During the 1960s, high levels of drug use and experimentation led to large numbers of people
being imprisoned for long periods of time. 241 As a result, mandatory minimum sentences for drugs
232
233
234
235
236
237
238
239
240
241
Quinn and McLaughlin “The Evolution of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586
at 625.
Ibid at 593.
Ibid at 601.
Ibid.
Ibid at 619; and <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System
(United States Sentencing Commission, 2011) at 22.
Mascharka “Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences” (2001)
Florida State University Law Review 935 at 939; and Quinn and McLaughlin “The Evolution of Federal Drug
Control Legislation” (1972-1973) 22 Cath U L Rev 586 at 620.
Quinn and McLaughlin “The Evolution of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586
at 620.
Special <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2; and Quinn and McLaughlin “The Evolution of Federal
Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586 at 620.
Quinn and McLaughlin “The Evolution of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586
at 620.
Mascharka “Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences” [2001] 28
Florida State University Law Review 935 at 938.
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