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Abstract

America's "War on Drugs" has resulted in federal legislation and sentencing guidelines that provide harsh penalties for crimes involving both drugs and guns. In particular, Title 18, Section 924(c)(1)(A) of the United States Code, which applies specifically to guns in the context of drug-related offenses, establishes mandatory punishments, ranging from five years to ten years imprisonment, depending upon the defendant's use or possession of the firearm. Congress amended Section 924 to include the term "possession" several years after the United States Supreme Court's decision in Bailey v. United States. The United States Supreme Court interpreted the "use" requirement of Section 924 to mean "active employment" of a firearm during and in relation to a drug trafficking crime, and not mere possession. Criticism arose immediately after the decision as various Congressmen derided the Supreme Court's "blunder" for giving undeserved benefits to "gun-toting thugs" and compromising the "Justice Department's war against drugs." In 1998, Congress amended Section 924(c)(1) to include "possession" of a firearm and represents a watered-down version of the Bailey court's determination of what circumstances implicate the mandatory minimum sentences of the statute. The active employment standard of Bailey should be the prevailing standard for Section 924 cases because it imparts fairness to an already harsh system of sentencing.