Judge John Gleeson: Not Done Yet
While the Guidelines are "only advisory" now, which brings little comfort to the tens of thousand of defendant sentenced when they weren't "only advisory," and are serving terms of decades rather than years because the Guidelines mandated that judges crunch numbers rather than employed thought, it is naive to believe that the Guidelines no longer influence sentencing.
Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.
The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability. (Emphasis added.)
Regardless of whether the judge has the duty to consider 18 U.S.C. §3553(a) in imposing sentence, the paradigm of sentencing (which non-criminal defense lawyers think is magic) remains based on the Guidelines. The variance, whether up or down, begins with a Guidelines sentence; it is the starting bar. And, as Judge Gleeson says, it is utterly lacking in basis, numbers plucked from the mandatory minimum statute rather than any empirical basis.
What must also be remembered is that judges have been sentencing according to the mandatory Guidelines for a generation now, such that the sentences imposed because the Guidelines required it have become the norm. What was a shockingly high sentence in 1987 is routine sentence in 2013. That's what use of the Guidelines for so long will do to the "magic" of the appropriate length of a sentence.
Judge Gleeson explains what is wrong:
While the rationale is clear and makes complete sense, it seems almost counterintuitive to those who have lived under the Guidelines for so long. Judge Gleeson remembers how the Guidelines began down the wrong path.
If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines. The drug trafficking offense guideline was born broken. Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe. Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges. The Commission should listen and act. It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses. That process will take time. In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....
On June 19, 1986, University of Maryland basketball star Len Bias died of a drug overdose. Congress promptly enacted the Anti-Drug Abuse Act of 1986 ("ADAA"), which established a two-tiered scheme of mandatory minimum and enhanced maximum sentences that have now become central features of the federal drug sentencing landscape. The ADAA’s five-year mandatory minimum, with a maximum enlarged from 20 to 40 years, was specifically intended for the managers of drug enterprises, while the ten-year mandatory minimum, with a maximum of life, was intended for the organizers and leaders.
So yet again, one tragedy begat a congressional reaction, and the Guidelines, slated to go into effect in 1987, incorporated the mandatory minimum scheme. But as Judge Gleeson further explains, they did it wrong:
The dreaded drug tables made the Guidelines easy to calculate, provided one embraced the notion that the government got to impose quantity based upon whatever metric an assistant thought proper and provided a judge wasn't too disagreeable that day, and thereby elevated ease of use over anything resembling the rationale of a two-tiered system.
But right from the start Congress made a mistake. The severe sentences it mandated to punish specified roles in drug trafficking offenses were triggered not by role but by drug type and quantity instead. Instead of prescribing a five-year mandatory minimum for a defendant who the government proves to be a manager of a drug enterprise, the ADAA provides that the mandatory minimum is triggered by offenses involving 100 grams of heroin, 500 grams of cocaine, or 28 grams of crack. And instead of hinging the ten-year mandatory minimum on the government’s proof of a defendant’s leadership or "kingpin" status, Congress simply used larger drug quantities: 1 kilogram of heroin, 5 kilograms of cocaine, or 280 grams of crack. So if an offense happens to involve a drug type and quantity that triggers a mandatory minimum, every defendant involved in that crime, whatever his or her actual role, can be treated as a manager or leader at the option of the United States Attorney.
And things got worse from there when the Guidelines Commission "jettisoned" the rationale behind mandatory minimums and created a scheme based on drug quantity alone applicable to every defendant charged with a drug offense. And, as we are all painfully aware, the "weight-driven" scheme is designed to mesh with the mandatory minimums, so that it starts at the minimums and goes up, way up, from there.
Judge Gleeson's memorandum explaining his policy decision is a devastating condemnation of the lack of rational structural basis of the Sentencing Guidelines for drugs. It's a must-read for all criminal defense lawyers who handle federal drug cases.