Get-tough law for drug dealers might be flawed

Loophole possibly weakens penalty for Ecstasy trafficking

`A serious problem'

October 03, 2001|By Sarah Koenig | Sarah Koenig,SUN STAFF

When state lawmakers adopted new penalties this year for selling Ecstasy, Maryland's fastest-growing illegal drug, they intended to send a tough-on-crime message to dealers.

Instead, they may have seriously weakened the law: According to many lawyers, as of Monday, trafficking in Ecstasy can't be prosecuted as a felony unless one is caught with thousands of the little pills.

The confusion over the new law has prosecutors, defense lawyers and police officers bracing for fights about whether major drug dealers will get little or no jail time because of a legal loophole.

"It's a joke," said Baltimore defense attorney Jack B. Rubin. "My God, they really did create a nightmare here. I think they have a serious problem."

Others, such as Assistant Attorney General Kathryn M. Rowe, disagree, saying that although the law could be clearer, judges will uphold lawmakers' intent.

"I don't think that the courts, in their wildest imagination, would think the legislature meant to lower or eliminate a penalty for this drug," she said.

Del. Carol S. Petzold, the Montgomery County Democrat who sponsored the legislation last session, is worried.

"I do plan to fix it," she said. "I think I will make emergency legislation to have it clarified." The General Assembly session begins in January; if such corrective legislation is passed, it would take effect as soon as the governor signed it.

Petzold said she has known about the potential problem since June. "I was just hoping that it would slide under the horizon for a couple of months without a problem," she said.

The new law came about because of a request last year from Montgomery County police, who were seeing more and more Ecstasy, the common name for the hallucinogenic drug MDMA, on the streets and in clubs.

Kirk Holub, a sergeant in the county's narcotics section, said yesterday that his department seized about 30,000 Ecstasy pills between January and March, compared with 20,000 for all of last year.

"All the drug groups are picking it up now because they know the money's there," he said.

The nationwide trend is particularly acute in Maryland's suburbs. A recent survey of 35,000 Maryland schoolchildren found use among 12th-graders had doubled over the past four years.

Before the new law went into effect, someone caught selling Ecstasy or intending to sell it could be charged with a felony and face up to five years in prison and a $15,000 fine.

Holub thought the state needed tougher punishments, and so asked Petzold to craft a bill adding Ecstasy to a section of state law that imposes mandatory minimum sentences for drug trafficking -- a section that includes dealing cocaine and heroin.

An early draft of Petzold's bill established five years as the minimum sentence for someone caught with 75 grams of Ecstasy -- and allowed sentences of up to 40 years and fines of up to $1 million.

But the policy of mandatory minimum sentences has powerful opponents in the House Judiciary Committee, which handled the bill.

Petzold said yesterday that she knew her proposal wasn't going to get committee approval, so it was amended to say that anyone caught with 750 grams -- from 2,500 to 7,500 pills, depending on the dosage -- is guilty of a felony and faces up to 20 years in prison and a fine of $20,000.

That weight was chosen, Holub explained, because 750 grams of Ecstasy is worth about $50,000 on the street, a value roughly equal to the amounts of other drugs listed in the statute.

The problem is that the law could be interpreted to mean that anyone caught with less than 750 grams of Ecstasy should be charged with simple possession -- a misdemeanor that can carry a maximum penalty of a year in jail or a $1,000 fine.

Petzold acknowledges the law could be read that way because of a "mistake" in the way it was drafted, but says it wasn't the Assembly's intent.

William M. Katcef, an Anne Arundel prosecutor who tracks legislation for the Maryland State's Attorney's Association, said he thinks judges will understand that. He believes that for lesser amounts of Ecstasy, the courts will still allow felony prosecution under the original five-year and $15,000-fine standard.

Other prosecutors are less optimistic about the effect of the new law.

"Let's see ... how do I put this," said Frank C. Meyer, chief of the investigation division of the Baltimore County state's attorney's office. "I've read it and reviewed it, and we look at it as problematic."

Meyer anticipates the loophole will lead to fights in court and appellate challenges, and could prevent his office from prosecuting certain Ecstasy offenders as felons.

Howard County State's Attorney Marna L. McLendon agrees.

"If it is interpreted by the court in that way, that's very disturbing," she said. Howard County has seen a sharp rise in Ecstasy use as dealers come in from other counties and even out of state to sell to suburban youths, she said.

Regardless of what prosecutors and judges decide, Holub says his officers are going to continue to crack down on Ecstasy dealers.

"If we seize someone with 200 pills, we are charging him with a felony," he said. "Let the powers that be do what they want in court, but we are not changing our ways in Montgomery County just because there's a question with the law."

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