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Q: I was told that conspiracy charges for drug offenses don't require anyone do anything, that just talking about buying or selling illegal drugs is enough to be a crime. I had read before that the laws required both talking about doing something and then someone actually had to do some little piece of the plan before it was a crime. Which is it?

A: Unfortunately the current US federal controlled substances laws are a kafkaesque nightmare. There is something which is often referred to as "the drug exception to the Constitution" or "the drug exception to common sense". In this case, there is a "drug exception" to the normal requirements for a conspiracy conviction.

Under US federal law, most conspiracy crimes require both an agreement between two or more people and some sort of action intended to work towards completing the plan by any of the people involved with the plan. For instance the law banning "Conspiracy to commit an offense or defraud the United States" (18 U.S.C. 371) states that it is a crime:

If two or more persons conspire either to commit any offense against
the United States, or to defraud the United States, or any agency
thereof in any manner or for any purpose, and one or more of such
persons do any act to effect the object of the conspiracy...

And this is what is commonly thought of as the requirements for a conspiracy conviction.

However, in the case of crimes involving controlled substances, the law is different and removes the "any act to effect the object" language:
(21 U.S.C. 846)

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

This makes simply talking about committing a drug crime (for instance talking about buying cannabis or talking about growing cannabis) potentially criminal. Although it is important to note that a prosecutor has to prove that an actual conspiracy or "agreement" had taken place, if two people agree to possess/distribute/manufacture a controlled
substance, then they are guilty under this statute. The implication that the individual is as guilty and punishable for talking about buying cannabis as they are for actually buying it can certainly seem chilling.

The immediate reaction of most who hear this is disbelief. A typical response might be "That can't be Constitutional, I have a right to talk about whatever I want to talk about so long as I don't actually do anything else."

But, unfortunately, there have been several challenges to this law and the Supreme Court of the United states ruled unanimously in 1994 in the case United States v. Shabani, 513 U.S. 10 (1994) that the federal law was enforceable as it was written. A lower court, the more civil-rights-oriented US Ninth Circuit of the West Coast, had ruled that there had to be some actual activity beyond talking before a felony had been committed.

Justice O'Connor, writing for the unanimous Supreme Court stated it very clearly:

What the Ninth Circuit failed to recognize we now make
explicit: In order to establish a violation of 21 U.S.C. 846, the
Government need not prove the commission of any overt acts in furtherance of
the conspiracy. ( US vs Shabani, 1994

The following are additional references to cases where the law was challenged in a number of ways: "void for vagueness" (laws in the US can be invalid if they are very vague about exactly what action would be criminal, although this protection has largely been eliminated by Supreme Court decisions), right to freedom of speech, right to assemble and associate, and protections against criminalizing status. All constitutional challenges have so far failed.

U.S. v. Pulido, C.A.7 (Ill.) 1995, 69 F.3d 192 : Found that the drug conspiracy statute did not violate the First Amendment's protection of speech and thought because criminal agreement itself is an action (actus reus).

U. S. v. Cooper, C.A.5 (La.) 1979, 606 F.2d 96, certiorari denied 100 S.Ct. 685,
444 U.S. 1024, 62 L.Ed.2d 657: Found that the section in question did not place impermissible restrictions on freedoms of association and expression under the First Amendment.

U. S. v. Cooper, C.A.5 (La.) 1979, 606 F.2d 96, certiorari denied 100 S.Ct. 685, 444
U.S. 1024, 62 L.Ed.2d 657 : Found that the law provided adequate notice under common law that any agreement to purchase and distribute totally prohibited substances such as heroin would be a violation of the law and does not violate the Fifth Amendment's requirement of due process.

U. S. v. Hayes, C.A.5 (Tex.) 1979, 595 F.2d 258, rehearing denied 598 F.2d 620, certiorari denied 100 S.Ct. 138, 444 U.S. 866, 62 L.Ed.2d 89 : Found that the law was not unconstritutionally vague and convicted a pharmacist of conspiracy to distribute a controlled substance.

U. S. v. Umentum, E.D.Wis.1975, 401 F.Supp. 746, affirmed 547 F.2d 987,
certiorari denied 97 S.Ct. 1677, 430 U.S. 983, 52 L.Ed.2d 376 : Found that this law did not violate the First Amendment. It also denied the theory that this law could violate the protection against 'crimes of status' which protects individuals from being prosecuted for simply being an alcoholic or a drug addict. This law requires the act of agreement or planning and thus does not punish for status alone.

U. S. v. Amidzich, E.D.Wis.1975, 396 F.Supp. 1140: Found that this law does not impermissibly infringe on the First Amendment's protection of collective conversation.

U. S. v. Sanchez, N.D.Tex.1973, 380 F.Supp. 1260, affirmed 508 F.2d 388, certiorari denied 96 S.Ct. 45, 423 U.S. 827, 46 L.Ed.2d 44 : Also found the law constitutional and denied the defendent's challenge.

The main thing that concerns civil libertarians about this type of law is not that it, by itself, endangers the freedom of the people but that it is one of many laws which have been passed and found Constitutional which produce a society in which everyone is at constant risk of committing a felony. Idle conversations about going to the park and trying to buy cannabis, although they will never be prosecuted, could be technically illegal.

This law is one of many which brings into sharp relief the question of what constitutes criminal activity. Not only are there laws against consensual activities but laws which ban agreeing to engage in a consensual act as an adult. Should a democratic society allow such a broad definition of felonious action that it justifies universal surveillance (the panopticon)? What effects does it have on a society over the long term of creating a pervasive sense that arbitrary and disproportionate enforcement are the norm?

Hope that answers your question,


Asked By : QReeus
Answered By : earth
Published Date : 7 / 26 / 2003
Last Edited Date : 7 / 28 / 2003
Question ID : 3055

Categories: [ Law ]

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