Sentence Enhancements aren't All Bad

Originally Published November 4, 2014

Christopher Cross, of Indiana, a habitual substance offender was convicted of possessing and selling drugs. Cross received a five year enhancement to the drug sale conviction because the transaction involved a firearm, a violation of Indiana Code 35-48. Cross disputed this enhancement to the original sentence, claiming that “the dual convictions for the firearm enhancement and carrying a handgun without a license were based on the ‘very same behavior or harm’ and cannot stand.”

The facts of Cross’s case are as follows: Christopher Cross resisted officers and attempted to draw a .38 caliber pistol from his pant leg to ward off arresting officers. These actions were all in the course of possessing cocaine while attempting to complete a thwarted sale of that cocaine. The enhancement was upheld by The Indiana Court of Appeals but reversed by the Indiana Supreme Court Cross v. State.

Lets be clear. The selling of cocaine does not require a weapon. On the contrary, the only necessaries are: a buyer, a seller, cocaine, and some form of payment. Weapons are not germane to the activity of selling drugs. The decision by the Indiana Supreme Court to reverse promotes the idea that the sale of drugs is incomplete without the use of weapons.

By outlining and accepting the Double Jeopardy analysis of Miller v. Indiana, the court appears out of touch with the legislature. Miller informs us that courts are prohibited from enhancing a punishment, where the enhancement is imposed for the very same behavior as the crime for which the defendant was convicted. Is that not what enhancements are meant for? Any factor that aggravates the offense in such a way that it makes the offense itself worse thus becomes eligible for an enhancement.

Why would this court rule against common reason and undo the efforts of the legislature?

If Cross could have been convicted of selling cocaine aside from and without the firearm in his possession, then it was counterproductive to eliminate an enhancement for his possessing the firearm. The notion that selling drugs is the &same behavior& as possessing a firearm is baffling. Clearly one can happen without the other. It seems clear that the goal of the legislature in adopting Indiana Code 35-48-4.1 was to minimize the potential for casualties during drug sales and prevent them from becoming even more dangerous. Does that mean the Indiana legislature condones illegal drug sale transactions? Assuredly not. However, the law in question, imposing a sentence enhancement is most certainly meant to apply in precisely these situations.

The supreme court went on to note, “[c]onviction and punishment for an enhancement of a crime [is improper] where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.” This logic is inherently flawed. Enhancements, by their very nature are intended to be included in the overall conviction for a crime. The enhancements are designed to deter particular behaviors, regardless if they are in furtherance of another crime or not.

The State's response to Cross’ contention, that the enhancement amounted to double jeopardy, was simple, “[the] Defendant’s use of this weapon during [the] commission of the offense was what warranted enhancement.” Though simple, this sentiment still fails to articulate the actual reason for the enhancement – making drug sale transactions safer.

The law in question: Ind. Code §35-50-2-13 ‘Enhanced sentence for using or possessing a firearm while dealing in a controlled substance,’ was formed to eliminate the use of firearms during drug sale transactions, period. There was no convoluted reason for adopting this enhancement. Firearms are dangerous. Furthermore, the sale of drugs when coupled with firearms can be especially dangerous.

Thus, the legislature sought to minimize the ordinary dangers associated with drug sales by attaching a mandatory enhancement for any such crimes involving drug sales where firearms contribute to the transaction. The law does not retreat from criminals that are convicted of crimes that are similar to the enhancement worthy offense. If the law were intended to be this easily circumvented the legislature never would have adopted it.

Enhancements to charges, though harsh, are necessary evils to prevent dangerous activity from going unpunished.