Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done

Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

The drug kingpin is a familiar figure in movies and televisions shows about the drug trade.  And in the movies, the kingpin is usually easy enough to describe.  The kingpin is the cold, calculating head of a criminal enterprise, making large amounts and using force to maintain his or her power.  In the law, however, kingpins are much harder to identify. This theme comes up in a few different parts of my casebook.

As a matter of legislative drafting, defining drug kingpins presents a few difficult challenges.  I highlight the issues with a pair of cases: United States v. Witek, 61 F.3d 819 (11th Cir. 1995) and New Jersey v. Alexander, 136 N.J. 563 (1994).

Witek concerns the federal “continuing criminal enterprise (CCE)” offense.  Created by Congress in 1970 as part of the Controlled Substances Act, CCE requires the defendant engage in a “continuing series” of federal drug crimes “which are undertaken . . . in concert with five or more other persons with respect to whom [the defendant] occupies a position of organizer, a supervisory position, or any other position of management and from which [the defendant] obtains substantial income or resources.” 21 U.S.C. § 848.  In Witek, the Court overturns the defendant’s CCE conviction, finding he only supervised two people within the meaning of the statute, not five.

In Alexander, we see a different approach to identifying drug kingpins.  The New Jersey law at issue provided for a 25 year-to-life sentence for anyone who was “a leader of a narcotics trafficking network.”  But leader was defined quite broadly, as conspiring “with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport” a controlled substance in New Jersey.  In Alexander, the New Jersey Supreme Court tries to reconcile the legislature’s stated purpose of targeting drug kingpins with language that would seem to apply to people much much lower on the totem poll.  Ultimately, the Court engrafts an additional requirement onto the law — that the government prove the defendant was an “upper echelon” leader, superior to street level distributors—over a vigorous dissent.

Together, the cases reveal a couple of different problems when it comes to kingpins.  First, trying to translate our image of a “kingpin” into legislation is no easy task.  The federal CCE statute is pretty specific, but even this law might be criticized as sweeping too broadly.  Indeed, courts have held that a “defendant need not be the dominant organizer or manager of a criminal enterprise; the statute only requires that he occupy some managerial position.”  US v. Becton, 751 F.2d 250 (8th Cir. 1984). Yet, at the same time, it may not reach broadly enough.  Drug kingpins may try to insulate themselves by dealing with only a few people directly and keeping others at arms-length.  Arguably, this is what results in the reversal in Witek: the defendant was found not to have supervised street-level dealers with whom he had only a buyer-seller relationship.

New Jersey lawmakers tried a more flexible approach than CCE but wound up with a law that even the Alexander dissent acknowledged was much broader than its stated purpose.  Moreover, the majority’s “upper echelon” fix is not a model of clarity.  The Court defines an “upper echelon” drug leaders as “one who occupies a significant or important position in the organization and exercises substantial authority and control over its operations.”  Is it possible to discern what evidence a prosecutor would need to put on to meet this test?

The second key challenge is that, to the extent “drug kingpin” can be precisely defined, the result will inevitably be a crime that is very difficult to prove — not just in terms of collecting the evidence but putting on the case.  Proving that someone was a manager or supervisor of five people is a potentially time consuming proposition.  This may be one reason that CCE is rarely prosecuted: of the 22,911 defendants sentenced for a federal drug offense in 2009, only 22 were convicted of CCE.

Another reason may be that CCE does not provide the enforcement value today that it once might have. When Congressed passed the Controlled Substances Act, CCE was alone in providing for a stiff mandatory minimum sentence upon conviction.  Today, of course, federal drug laws are replete with mandatory minimums.

Indeed, in Witek, the defendant appears to emerge victorious, with his CCE conviction overturned. What did this “win” mean in practical terms?  Not much at all.  The guy still ends up with a life sentence based on his conspiracy conviction.  In a footnote at the end of the decision, the Court explains: “As we affirm [the defendant’s] other convictions, the only collateral consequence of vacating his CCE conviction is eliminating the $250 special assessment imposed for that count.”

The question of drug kingpins arises in other settings in the book as well.  The high cost of wiretaps, for example, may be another barrier to kingpin prosecutions.  Drug sentencing laws arguably give a perverse incentive to use upper-level players to catch more small fries, rather than the way around.

Together, the materials show why we haven’t been able to “win” the drug war by “taking out the kingpins.” Defining, locating, and prosecuting drug kingpins is much easier said than done.

Prior post in series:

• Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
• Controlled Substances # 1: Teaching Drug Possession