What is Drug Charge Stacking and How Minor Criminals May Face Excessive Prison Sentences?

February 18, 2022 by Anthony Riccio

In the long-fought War on Drugs, sentences have been disproportionate to the crime. Despite attempts to reduce excessive sentencing in parts of the country, the popularity of charge stacking has continued to wreak havoc on lives for minor offenses. 

What is Drug Charge Stacking? 

While drug charge stacking occurs when the prosecutors charge for multiple offenses for the same act, consecutive sentencing means a person can serve an exorbitant sentence for a minor offense. The Unsystematic Issuing of Consecutive Sentences in America examines the role of drug charge stacking and consecutive sentencing.

For example, an individual who is arrested for selling narcotics one time will usually receive three consecutive sentences by stacking three drug charges:

  • Sale of narcotics outside the original package
  • Sale of narcotics known to have been illegally imported
  • Sale of narcotics not “pursuant to the appropriate Treasury order forms”

Each offense carries 3 to 5 years per charge, leading to a potential 15-year sentence for committing one crime.

Is Charge Stacking Legal Blackmail for Minor Criminals?

As states slowly begin to decriminalize marijuana, the recent arrest of Thomas Hall and subsequent charge stacking seems like the start of a joke rather than a serious news story. 

Brookside police in Alabama have ramped up their War on Marijuana during invasive traffic stops along Interstate 22. According to reports, Thomas Hall was stopped for speeding when police searched his car. Under Alabama law, finding a small amount of marijuana would generally see a Class A misdemeanor which carries a sentence of up to one year in prison. 

However, law enforcement decided to outdo themselves and charged Hall with the following:

  • Misdemeanor drug possession
  • 5 counts of possession of drug paraphernalia
    • Rolling papers
    • Cigar wraps
    • Plastic bag that contained the marijuana
    • Jar that “may have held marijuana”
    • Tray that “might have” been used for rolling a joint

Drug charge stacking and other charge piling have been used to help Brookside increase profits by 640% in two years. 

Prosecutors also avoid the costs of trials by using stacked charges to coerce defendants into plea deals. Prosecutors are liberally piling charges from the same offense to create decades-long prison sentences if convicted. Prosecutors then offer the defendant a “plea deal” that significantly reduces their sentence. 

By using the risk of conviction as a major scare tactic, prosecutors can avoid the time, work, and the cost that it takes going to trial. 

Exercising the Sixth Amendment and the Trial Penalty

Every American has the right to a public trial; however, exercising the Sixth Amendment of the Constitution has become a source of punishment. Rather than allow an accused individual the ability to be “innocent until proven guilty,” drug charge stacking has frightened most defendants into plea deals. 

According to Human Rights Watch, An Offer You Can’t Refuse, 9 out of 10 federal and state criminal cases end with plea deals. When going to trial often means a sentence three times longer than the plea bargain, what rational person would risk so much? 

The report reveals that on average:

  • Federal drug plea deals are sentenced to approximately 5 years and 4 months
  • Federal drug offenders who go to trial are sentenced to 16 years
  • Only 3% of federal drug defendants head to trial

Apart from numbers, numerous lives have been disrupted by this practice. Darlene Eckles allowed her brother to operate a drug dealing business out of her home, occasionally helping count cash. She was offered a ten-year sentence on a plea bargain but asked for a trial. Eckles is currently serving a twenty-year sentence.

Patricio Paladin was arrested for cocaine distribution and offered a twenty-year sentence. He took his case to trial and is now serving a life sentence without parole.

After being arrested for marijuana distribution and gun possession, Weldon Angelos was offered a fifteen-year sentence. After requesting a trial, Angelos is now serving a fifty-five-year sentence.

The Sixth Amendment of the Constitution has taken a significant hit with drug charge stacking. Eckles, Paladin, and Angelos all fell victim to what human rights activists are calling the “trial penalty.” 

According to the data:

  • Defendants accused of drug offenses with mandatory minimum sentences who asked for a trial were given sentences 11 years longer than those who accepted the plea bargain
  • First-time drug offenders typically received a sentence twice as long as those who took the plea deal

When individuals exercised their right to a trial, prosecutors stacked as many charges as possible for one offense and employed every sentencing enhancement available for those eligible. 

How Simple Drug Charges Are Turning into Life-Sentences

Drug charge stacking is further enhanced by the mandatory minimum sentencing, leading many to life sentences without the possibility of parole.

According to the study, A Living Death: Life without Parole for Non-violent Offenses:

  • 63% of federal prisoners are serving life without parole (LWOP)
  • 69% of LWOP prisoners are due to non-violent drug offenses

Non-violent drug offenses make up over half of all LWOP sentences, grossly disproportionate to the crime. Over the last 40 years:

  • Incarceration quadrupled, surpassing 2.3 million people
  • The US contains less than 5% of the world’s population but incarcerates the greatest number of people in the world at the highest rate

In the last reporting year in Massachusetts, drug offenses were responsible for the second-highest reason for the newly incarcerated at 24%.

While charge stacking occurs for several types of crimes, drug offenses carry the lengthiest prison terms. Out of the 50-year War on Drugs, mandatory minimum sentences, three-strike rule, and consecutive sentencing have made stacking multiple drug charges for one act easy and common. 

Is the War on Drugs Hurting the US Justice System? 

Coercive plea-bargaining using drug charge stacking is at the root of mass incarceration. In his piece to NBC’s THINK, Clark Neily noted that prosecutors’ eagerness to strongarm defendants is backed by the Supreme Court’s support. This is illustrated by examining the 1978 Supreme Court case, Bordenkircher v. Hayes. 

In this case, the Court upheld a life sentence for forging one $88 check. Bordenkircher was offered a five-year plea-bargain. He was then threatened with being charged as a “habitual offender,” increasing his sentence to a mandatory life sentence if he refused to accept the offer. Bordenkircher is one of the first famous examples of the trial penalty. 

Neily further remarks that drug charge stacking has effectively removed the justice system’s essential functions. The US Constitution supported citizen participation by way of jury trials. With less than two percent of federal cases going to trial, the system is broken. 

If you are facing the unsavory tactic of drug charge stacking, seek the experienced counsel of Riccio Law to discuss your options.