Office of the Attorney General
September 23, 1997
MEMORANDUM FOR ALL UNITED STATES ATTORNEYS
FROM: THE ATTORNEY GENERAL
Drug-Induced Violent Crime Prosecutions
The Drug-Induced Rape Prevention and Punishment Act of 1996 (Act), 21 U.S.C. Sec. 841(b)(7), provides criminal penalties of up to 20 years imprisonment for any person who distributes a controlled substance, such as Rohypnol, to a person with the intent to commit a crime of violence, including rape. The Act does not federalize any new conduct inasmuch as the distribution of a controlled substance is already a federal crime. It does, however, establish the basis for harsher penalties under federal law if the distribution facilitates a violent crime.
In cases of drug-induced violence, the likely Sentencing Guidelines range for the actual drug distribution will generally be very low, since the drug quantity involved will generally be in the range of a single dosage unit. To avoid this problem, the Sentencing Commission has established that the range be based not on the drug guidelines, see USSC Sec. 2D1.1, but rather on the guidelines for an attempt, solicitation or conspiracy relating to the underlying substantive crime of violence. USSC Sec. 2D1.1(d)(2). Those guidelines, in turn, establish the guidelines range at or near the guidelines range for the underlying substantive crime itself, particularly if the underlying crime of violence was completed. USSC Sec. 2X1.1. You should be aware, moreover, that penalty enhancements are available under Title 21 for subsequent offenses involving Rohypnol (referred to in the statute by its chemical name flunitrazepam). See 21 U.S.C. § 841 (b)(1)(C-D).
I fully recognize that the vast majority of crimes which could be charged under the Act are, and will continue to be, prosecuted by state and local prosecutors. Nonetheless, I want to make certain that our state and local law enforcement partners are aware of the statute and know that they can call upon you in those cases where there is an appropriate federal interest in prosecution. There are, of course, many factors that govern whether federal prosecution is warranted in a particular case. Ultimately, these decisions should be made as part of your overall collaborative planning with your state and local law enforcement partners, to make certain that limited law enforcement resources are most effectively targeted at priority criminal justice problems.
The Narcotic and Dangerous Drug Section of the Criminal Division, in conjunction with the Terrorism and Violent Crime Section, is responsible for coordination in this program area and you should contact either section if you have any questions.
I appreciate your willingness to work on developing areas of the law and the enhanced collaboration with our state and local law enforcement partners in which so many of you have engaged.
cc: Honorable James Doyle
Attorney General of Wisconsin
and President of the National
Association of Attorneys General
Honorable William Murphy
District Attorney of Richmond County
and President of the National
District Attorneys Association