SPONSOR:	Rep. Maier & Rep. Van Sant &
	Sen. Henry & Sen. Sorenson; Reps. B. Ennis, George, Hall-Long, Houghton, Keeley, Mulrooney, Plant, Viola; Sens. Cloutier, Peterson, Simpson, Sokola

HOUSE OF REPRESENTATIVES

142nd GENERAL ASSEMBLY

HOUSE BILL NO. 517

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO DRUG OFFENSES.

Section 1. Amend §4751, Title 16 of the Delaware Code, by deleting subsection (d) thereof in its entirety.

Section 2. Amend §4753A, Title 16 of the Delaware Code, by deleting subsections (a), (b), (c), and (d) thereof in their entirety, by redesignating subsection (e) thereof as subsection (c), and by inserting therein as new subsection (a) and (b) as follows:

“(a) Except as authorized in this chapter, any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly in actual or constructive possession of illegal drugs, in excess of the prescribed amounts outlined in subsection (b), is guilty of a Class C felony, known as Trafficking in Illegal Drugs, and shall be fined not less than $5,000 nor more than $50,000.

(b) This law applies if the quantity involved is:

(1) 5 pounds or more of marijuana;

(2) 10 grams or more of cocaine or of any mixture containing cocaine, as described in §4716(b)(4) of this title;

(3) 2.5 grams or more of morphine, opium, or any salt, isomer or salt of an isomer or salt of an isomer thereof, or any mixture containing any such substance as described in §4714 of this title, or 2.5 grams or more of any mixture containing any such substance;

(4) 5 grams or more of methamphetamine, including its salt, isomer or salt of an isomer thereof, or any mixture containing any such substance as described in §4716(d)(3) of this title;

(5) 5 grams or more of amphetamine, including its salts, optical isomers and salt of its optical isomers, or of any mixture containing any such substance, as described in §4716(e)(1) of this title;

(6) 5 grams or more of phencyclidine, or of any mixture containing any such substance, as described in §4716(e)(5) of this title;

(7) 50 doses or more (each dose constitutes up to 100 micrograms) or in a liquid form 5 milligrams or more of lysergic acid diethylamide (L.S.D.), or of any mixture containing such substance, as described in §4714(d)(9) of this title;

(8) 25 or more doses or tablets, or 5 or more grams, or 5 milliliters or more of 3,4-methylenedioxy-methamphetamine (MDMA), its optical, positional and geometric isomers, salts and salts of isomers; or any mixture containing such substance, as described in §4714(d)(21) of this title; or

(9) Any amount of a designer drug or any mixture containing any such substance, as described in §4701(9) of this title.”

Section 3. Amend §4761(a), Title 16 of the Delaware Code, by deleting paragraphs (3) and (4) thereof in their entirety.

Section 4. Amend §4761A(a), Title 16 of the Delaware Code, by deleting paragraphs (3) and (4) thereof in their entirety.

Section 5. Amend §4763(a), Title 16 of the Delaware Code, by deleting paragraph (2) thereof in its entirety.

Section 6. The provisions of this act will take effect with respect to all crimes that are committed as of 12:01 a.m., August 1, 2004, or thereafter. The provisions of Title 16 that are repealed by this act shall remain in force and effect for the purpose of trial and sentencing for all crimes that occur prior to 12:01 a.m., August 1, 2004.

Section 7. This Act shall be known and may be cited as “The Mandatory Minimum Drug Sentencing Reform Act”.

SYNOPSIS

This bill repeals all mandatory minimum sentences in Title 16 relating to violations of our drug laws, returning to the Courts of this State, under sentencing guidelines, the discretion to pronounce sentences appropriate to the cases before them—that is, to make the punishment fit the crime.

Current law permits the Court, upon motion by the State, to sentence a “non-addict” convicted of §4751(Delivery or Possession with Intent to Deliver a Narcotic Drug) to a six-year mandatory minimum sentence for first offenders, and to a twelve-year minimum mandatory sentence for second offenders. The State is required to prove by a preponderance of the evidence that the defendant is a “non-addict” before this subsection is triggered. However, this statute is almost never used, in large part because it is very difficult for counsel and the Court to fairly and equitably ascertain whether someone is a “non-addict” – a vague characterization by any standard. Hence, Section 1 of this bill seeks to discard this law as obsolete.

Section 2 of this bill removes all the mandatory minimum penalties pertaining to Trafficking drugs. Under current law, a person who is convicted of possessing a certain threshold quantity of drugs faces a mandatory minimum sentence, the length of which depends upon the weight and nature of the drug. Under this bill’s proposed scheme, defendants convicted of possessing the same threshold quantity of certain drugs will face the potential harsh consequences of a Class C Felony, which carries a sentence range of 0 – 15 years. It is contemplated that SENTAC will develop guidelines to assist the sentencing judge, but under any scenario, it is contemplated that the Court will impose prison sentences in the large majority of cases where offenders are convicted of Trafficking in Illegal Drugs.

This bill also lowers the minimum fine threshold from between $25,000 and $400,000 TO $5,000. Under current law, a person convicted of trafficking in cocaine, for example, must pay a mandatory fine of $50,000. Although the Court typically suspends the fine, the Court is legally obligated to impose surcharges, which equate to 35% of the suspended fine: $17,500. Many offenders convicted of trafficking are indigent. This bill seeks to impose minimum fine ranges that will allow an offender, even with limited financial wherewithal, to reasonably satisfy his financial obligations to the Court.

Sections 3 and 4 of this bill eliminate the mandatory minimum provisions of two statutes that are never utilized by the State: §4761 (distribution to persons under 21) and §4761A (purchase of drugs from minors). This bill presumes that the Court, when imposing a sentence, will treat drug interplay with minors as an aggravating factor, as the Court does in any criminal case.

Finally, Section 5 of this bill eliminates §4763(a)(2), Title 16, which provides for enhanced mandatory penalties for drug offenders with prior convictions. In so doing, it is recognized that a prior drug conviction, like any prior conviction in any criminal case, will be considered by a judge in imposing a sentence, as called for in sentencing guidelines.