The Offense: Interpreting the Indictment Requirement in 21 U.S.C. § 851

Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“the Act”) to unify and rationalize its treatment of drug offenses. The Act was an enormous piece of legislation, requiring months of congressional hearings before it was passed. Today, the Act encompasses over 150 sections of title 21 of the U.S. Code and regulates behavior ranging from manufacturing and mislabeling to prescribing controlled substances. Like any piece of complex legislation, the Act has spawned its share of litigation. One controversy has defied satisfactory resolution: the meaning of the innocuous phrase, “the offense,” in section 851(a)(2). The statute’s structure is relatively straightforward. In 21 U.S.C. § 841, the Act proscribes individual drug trafficking. Section 841 further provides different mandatory minimum penalties for offenders based on the type and quantity of drugs being sold and also on the defendant’s criminal history. Most importantly for purposes of this Note, section 841 doubles a defendant’s mandatory minimum sentence if he has a prior drug-related conviction. The availability of this doubling provision, however, is limited by procedural requirements in 21 U.S.C. § 851, including that the offense for which such increased punishment may be imposed must have proceeded by indictment or waiver of indictment.