21 U.S.C. § 861: Employment or use of persons…

Summary

Anyone 18 or older must not, on purpose, hire, use, persuade, entice, or force a person under 18 to commit federal drug crimes, to help hide those crimes from police, or to receive drugs from a person under 18 (except an immediate family member). A first conviction doubles the usual maximum punishment and at least doubles any supervised release, and normally carries at least a one-year prison term unless another law requires more. A later conviction triples the usual maximum and supervised release and normally carries at least one year; third and later convictions follow section 841(b)(1)(A). If the person knowingly gives or sells drugs to someone under 18, or if the young person used is 14 or younger, the offender also faces up to 5 years in prison or a fine up to $50,000, or both, on top of other penalties. Sentences cannot be suspended and probation is not allowed, and parole is barred until any required minimum time is served. It is also illegal to knowingly give drugs to a pregnant person, with the same penalties.

Title 21, §861

Food and Drugs, Source: USLM XML via OLRC

(a)Unlawful acts

It shall be unlawful for any person at least eighteen years of age to knowingly and intentionally—

(1)employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to violate any provision of this subchapter or subchapter II;

(2)employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to assist in avoiding detection or apprehension for any offense of this subchapter or subchapter II by any Federal, State, or local law enforcement official; or

(3)receive a controlled substance from a person under 18 years of age, other than an immediate family member, in violation of this subchapter or subchapter II.

(b)Penalty for first offense

Any person who violates subsection (a) is subject to twice the maximum punishment otherwise authorized and at least twice any term of supervised release otherwise authorized for a first offense. Except to the extent a greater minimum sentence is otherwise provided, a term of imprisonment under this subsection shall not be less than one year.

(c)Penalty for subsequent offenses

Any person who violates subsection (a) after a prior conviction under subsection (a) of this section has become final, is subject to three times the maximum punishment otherwise authorized and at least three times any term of supervised release otherwise authorized for a first offense. Except to the extent a greater minimum sentence is otherwise provided, a term of imprisonment under this subsection shall not be less than one year. Penalties for third and subsequent convictions shall be governed by section 841(b)(1)(A) of this title.

(d)Penalty for providing or distributing controlled substance to underage person

Any person who violates subsection (a)(1) or (2)

(1)by knowingly providing or distributing a controlled substance or a controlled substance analogue to any person under eighteen years of age; or

(2)if the person employed, hired, or used is fourteen years of age or younger,

shall be subject to a term of imprisonment for not more than five years or a fine of not more than $50,000, or both, in addition to any other punishment authorized by this section.

(e)Suspension of sentence; probation; parole

In any case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended and probation shall not be granted. An individual convicted under this section of an offense for which a mandatory minimum term of imprisonment is applicable shall not be eligible for parole under section 4202 of title 18 until the individual has served the mandatory term of imprisonment as enhanced by this section.

(f)Distribution of controlled substance to pregnant individual

Except as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally provide or distribute any controlled substance to a pregnant individual in violation of any provision of this subchapter. Any person who violates this subsection shall be subject to the provisions of subsections (b), (c), and (e).

Notes & Related Subsidiaries

Editorial Notes

References in Text

Section 4202 of title 18, referred to in subsec. (e), which, as originally enacted in Title 18, Crimes and Criminal Procedure, related to eligibility of prisoners for parole, was repealed and a new section 4202 enacted as part of the repeal and enactment of a new chapter 311 (§ 4201 et seq.) of Title 18, by Pub. L. 94–233, § 2, Mar. 15, 1976, 90 Stat. 219. For provisions relating to the eligibility of prisoners for parole, see section 4205 of Title 18. Pub. L. 98–473, title II, §§ 218(a)(5), 235(a)(1), (b)(1), Oct. 12, 1984, 98 Stat. 2027, 2031, 2032, as amended, provided that, effective on the first day of the first calendar month beginning 36 months after Oct. 12, 1984 (Nov. 1, 1987), chapter 311 of Title 18 is repealed, subject to remaining effective for five years after Nov. 1, 1987, in certain circumstances. See

Effective Date

note set out under section 3551 of Title 18. Codification Section was classified to section 845b of this title prior to renumbering by Pub. L. 101–647.

Amendments

1990—Subsec. (b). Pub. L. 101–647, § 1003(c)(1), which directed the substitution of “is subject to twice the maximum punishment otherwise authorized” for “is punishable by a term of imprisonment up to twice that authorized, or up to twice the fine authorized, or both,” was executed by making the substitution for “is punishable by a term of imprisonment up to twice that otherwise authorized, or up to twice the fine otherwise authorized, or both,” to reflect the probable intent of Congress. Subsec. (c). Pub. L. 101–647, § 3599L, substituted “has become final” for “have become final”. Pub. L. 101–647, § 1003(c)(2), which directed the substitution of “is subject to three times the maximum punishment otherwise authorized” for “is punishable by a term of imprisonment up to three times that authorized, or up to three times the fine authorized, or both,” was executed by making the substitution for “is punishable by a term of imprisonment up to three times that otherwise authorized, or up to three times the fine otherwise authorized, or both,” to reflect the probable intent of Congress. 1988—Subsec. (a)(3). Pub. L. 100–690, § 6459, added par. (3). Subsec. (c). Pub. L. 100–690, § 6452(b)(1), struck out “or convictions” after “a prior conviction” and inserted at end “Penalties for third and subsequent convictions shall be governed by section 841(b)(1)(A) of this title.” Subsec. (e). Pub. L. 100–690, § 6470(d), struck out “required by section 841(b) of this title” after “mandatory term of imprisonment”.

§861 Employment or Use of Persons Under 18 Years of Age in Drug Operations