U.S. Plans Civil Fines for Drug Possession

The Administration issued proposed rules Friday for fines of up to $10,000 for possession of small amounts of drugs, including an ounce of marijuana, a gram of cocaine and one-tenth of a gram of PCP.

But Justice Department sources said the fines, authorized by the Anti-Drug Abuse Act of 1988, would be levied only on a pilot basis in a small number of districts because of fear that the cases would clutter already crowded federal courts and waste prosecutors.

“The concept--hitting users in their pocketbooks--is great, but the law has a lot of problems,” a department lawyer explained.

Atty. Gen. Dick Thornburgh, who has championed making users accountable for their drug consumption, signed the 46-page proposed civil penalties. He will issue the rules in final form after considering public comments that he receives in the next 30 days.

On its face, the 1988 act’s provision for civil penalties seems squarely in line with the Administration’s goal of fighting illicit drugs by putting new emphasis on curbing drug demand. The act provides for fines to be imposed according to a civil legal standard--preponderance of the evidence--as opposed to the much tougher criminal standard of proof beyond a reasonable doubt.

Fines would be proposed by U.S. attorneys, with defendants given the option of having their cases heard by an administrative law judge rather than a full-fledged federal district court judge. Federal district courts in many of the nation’s cities are already strained to capacity with more serious drug trafficking and related cases. But the federal courts would remain as avenues of appeal.

Separate federal laws provide criminal penalties of up to two years’ imprisonment and $5,000 fines for simple possession of illicit drugs. But these laws are rarely enforced except to provide scaled-down charges for plea-bargaining purposes, Justice Department sources said.

“The objective Congress sought to achieve was to find a way to punish drug use where it appears that a financial penalty would be a sufficient punishment and deterrent,” the proposed rules state.

The proposed rules would allow those who are fined to take their case to a federal district court judge with the full panoply of constitutional protections, including rights to a jury trial, to counsel and to confront accusing witnesses.

“It’s the only administrative law I know of where an appeal can be taken to a district court judge and he considers the matter de novo (anew),” said a department lawyer. “And we scoured the books.”

A spokesman said the department will probably apply the fines, once they become final, in a limited number of judicial districts to see how they work.

“We can’t clutter up the courts with these simple possession cases,” the department lawyer said. “And we can’t waste the prosecutive resources that would be required.”

The proposed rules provide fines of up to $10,000 for possession of not more than one gram of a substance containing detectable heroin, coca leaves or cocaine, one ounce of a mixture containing a detectable amount of marijuana, one gram of methamphetamine, one-tenth of a gram of a substance with a detectable amount of PCP or 500 micrograms of a substance with traces of LSD.

Under the proposed rules, persons found by federal agents to be in possession of the outlawed substances would be notified by a U.S. attorney of an impending fine. If they did not act within 30 days to ask for a hearing before an administrative law judge, the U.S. attorney could levy a fine within 45 days.

The attorney general could uphold, modify or dismiss the administrative law judge’s ruling. The individual could challenge the fine by filing suit in federal district court, where criminal court standards would apply.

“When we took a look at this law,” said one department attorney, “we thought about going back to Congress and asking them to fix it.” Instead, the attorney said, the department decided to implement the provisions on a pilot basis and to go back to Congress if they clogged the courts as much as expected.