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Drug Type and Quantity as Sole Determiner for Defendant Culpability at Sentencing

Carolina Academic Press

Carolina Academic Press

Over at Sentencing Law and Policy, Thomas Jefferson School of Law Professor Alex Kreit has been blogging for the past few weeks about his new casebook, Controlled Substances: Crime, Regulation, and Policy. The previous entries discussing the overview of the book, and some of the issues the book addresses, can be found here, here, and here.

So far the posts have been extremely interesting, and I would have loved the opportunity to take a class in law school solely dedicated to legal and policy issues pertaining to controlled substances.

But it was the topic of Professor Kreit’s third post on his casebook that particularly piqued my interest – measuring defendant culpability in drug cases:

Drug sentencing poses particularly difficult grading problems.  For crimes like murder or robbery, the essence of what makes the conduct wrongful is easy to grasp.  There may be disagreement about how to differentiate more and less serious homicides, for example, but the contours of the debate tend to present themselves more naturally.  Few would disagree that a person who kills “recklessly” should typically receive a lower sentence than someone who kills “intentionally” and so on.

I believe there is much less agreement about what it is that makes drug crimes fundamentally wrongful.  Is it the quantity of drugs involved?  The role the defendant played in the specific offense?  The defendant’s motive for becoming involved in drugs (for example, should a drug courier who is an addict be sentenced differently from one who is not)?  The defendant’s overall position in the drug enterprise (to the extent this can ever be pinpointed)?  (The argument that drug crimes are “victimless” and therefore not blameworthy at all is considered elsewhere in the casebook.)

Federal drug laws, and the laws of many states, have answered this problem by focusing largely on drug type and quantity.  The chapter begins with materials that look at this phenomenon.  Students will see the relationship between drug quantity and determinate sentencing laws.  Determinate sentencing requires measurables to work effectively and drug type and quantity are two of the easiest things to measure.  Certainly, weighing drugs is much easier than, for example, trying to define and prove someone guilty of being a “drug kingpin.”  But, is drug quantity really an accurate measure of culpability?  This is a theme that runs throughout the chapter with cases that continue to ask students to consider what factors should drive drug sentences.

As Professor Kreit notes, the real problem with making this determination is that the federal government and many states measure defendant culpability based on drug type and quantity alone. I wrote about the unintended and perverse consequences of only using drug quantity and type in a post last April regarding a case opinion where U.S. District Court Judge John Gleeson blasted the Department of Justice for their practice of charging low-level drug offenders with mandatory minimum penalties – penalties that were explicitly enacted in the Anti-Drug Abuse Act of 1986 to go after “kingpins” and high-level leaders and managers of drug enterprises:

The Anti-Drug Abuse Act of 1986 (the Act), passed by congress and codified at 21 U.S.C. § 841, established the mandatory minimum penalties that are now a hallmark of federal drug cases. But the vast majority of the way these mandatory minimum charges are used for drug crimes is in total contravention to the original purpose of the legislation.

As a U.S. Sentencing Commission report states, in passing the Act, “Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. Specifically, Congress intended to link the five-year mandatory minimum penalties to what some called ‘serious’ traffickers and the ten- year mandatory minimum penalties to ‘major’ traffickers.” Basically, the Act was meant to target the management of drug dealing syndicates, mid and high-level dealers, as well as the drug “kingpins” atop the organizations.

The problem is the Act seeks to determine the function of dealers in a drug business solely by the quantity of drugs a defendant is implicated with (mandatory sentences increase as the quantity of drugs increase), rather than specific roles individual dealers play within a criminal organization.

By passing a law simply focused on drug quantity in such broad language and with no requirement to prove a defendants specific role in a drug dealing business, contra congressional intent, these punitive mandatory sentences can be, and mostly are, applied to anyone arrested with the specified amount of drugs to trigger the mandatory sentence – regardless of the defendant’s role within a drug organization.

This is a significant flaw in the legislation; using drug quantity as a determiner is ineffective because high-level individuals at the top of drug dealing enterprises rarely ever deal, handle, or are even in the same room as large quantities of drugs – as the actual day-to-day dealing of drugs is typically delegated to low-level street dealers.

As Judge Gleeson points out, the problem is evidenced by the fact that in 2011, “over 74% of crack defendants faced a mandatory minimum, . . . yet only 5.4% occupied an aggravating role of leader or manager of a drug business . . . .” It turns out, “that the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties.”

I’m glad to see Professor Berman open up his blog for Professor Kreit to discuss the critical issues of criminal justice and drug law policy that have been ignored far too often. I just received my copy of the casebook and look forward to digging through it, as well as Professor Kreit’s upcoming installments at Sentencing Law and Policy. After just a cursory glance, I can tell this casebook will not only serve as a valuable tool for law students, but for practitioners as well. As a soon-to-be criminal lawyer, I know I’ll be using it.

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