While many European justice systems distinguish between possession of and trafficking in illicit drugs,
sentencing in drug cases in those countries tends not to depend (at least formally) upon
the quantity of drugs seized from a defendant, but rather on the circumstances in which
the defendant was found with drugs. Courts in the United States, on the other hand,
penalize those convicted of drug crimes through an elaborate system of sentencing rules and
guidelines. These sentences depend only upon the amount of drugs (possibly adjusted for
circumstances) and the defendant's criminal history. Because of the enormous amount of work
needed to determine drug type and quantity in each case, sampling the evidence and estimates of
drug quantity have been accepted in most courts in the United States. During the last two years,
several major developments in U.S. federal sentencing have taken place. It all started in
June 2000 with the Supreme Court case Apprendi v. New Jersey, in which Justice O'Connor,
in dissent, termed a "watershed in constitutional law".
Prior to Apprendi, a judge would sentence a convicted drug trafficker to imprisonment
using the preponderance standard of proof on the quantities of drugs seized.
The affect of Apprendi is to make more juries decide the quantity of drugs by the
reasonable doubt standard. Although Apprendi had nothing to do with illicit drugs,
the implication now is that all federal sentencing protocols are under revision.
Since Apprendi was decided, huge numbers of cases involving convicted drug traffickers
have relied upon its reasoning on appeal, with the result that a ruling from the Supreme Court on
further clarification of this issue is expected. This article discusses the impact so far of
Apprendi on statistical issues involved in estimating total drug quantity
and considers possible future directions under the changing protocols.