In a New York Times op-ed. former AUSA turned Minnesota lawprof Mark Osler did a mitzvah by explaining the game played in drug sentencing. After noting some of the problems recently raised about mandatory minimums, the pardon game and absurdly long Guidelines sentences, he goes on:
Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure. If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence. That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant. It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons.
This echoes the issues raised by EDNY Judge John Gleeson in Dossie and Diaz, but brings it to a level that has provided the core for criminal enhancement for so long, and in so many ways, that it’s really not given much thought anymore by criminal defense lawyers. Whether state or federal, the severity of a drug crime is dictated by the weight of the drugs. That’s how it’s done, and we take it for granted.
Apparently, we shouldn’t. When I first read Osler’s op-ed, it struck me as a well-conceived message, but one that most people with any interest in the subject would likely be aware of. It was great to see it make the op-ed page of the Times, of course, because it will be read by a far broader audience than those who are already interested, and that’s good. But its content was well known, and its path, well-worn.
But then I saw Radley Balko’s post about the piece, and it dawned on me that I was dead wrong. I was shocked, but this was important.
Now that the Obama administration and much of the political right is on board with reform, we may have finally turned a corner with respect to harmful, unjust, completely irrational sentences we’ve been imposing on people convicted of drug offenses. But there’s another aspect to drug sentencing that’s just as ridiculous but hasn’t received nearly as much attention — the way authorities weight the quantity of a drug when determining how to charge someone.
Radley is one of those very rare animals, a non-lawyer who has a remarkably good grasp of criminal justice and has accumulated a wealth of knowledge about the system. He’s so good that it’s easy to forget sometimes that he’s not one of us, and indeed his work, most notably his book, The Rise of the Warrior Cop, is a seminal piece in how we got into this mess. And so I take for granted that he knows all this stuff.
I was surprised. Perhaps I’m misreading his post, and it’s more about the lack of attention shown to this piece of the puzzle than the piece itself, but it occurred to me that if someone as knowledgeable as Radley hadn’t really given much thought to the fact that the drug mule is charged based on weight, then perhaps this is an issue ripe for far more public discussion.
There is an old cartoon, I believe from the New Yorker, where a defendant pled to a judge that it’s not his fault that he was carrying a kilo of drugs, as he was never any good with the metric system. If I can find it, I’ll add it in here. But when a person is prosecuted based upon an arbitrary distinction, that he carried a certain number of grams of dope (because we can all distinguish between the weight of 7 grams and 8, right?) it should reflect a significant difference in crime and sentence.
Radley goes on to discuss a related, but separate, issue, that drug weight is aggregate rather than pure. In other words, ten kilos of cocaine can contain 9 kilos of baby laxative, cut as it’s called in the trade, and only one of active narcotic, but it’s still ten kilos for the purpose of charging and sentence. This is a policy decision, that the purity of the drug is not considered, even though it tells a great deal about where the defendant is on the food chain of drugs. The higher the purity, the higher on the food chain, as drugs get “stepped on,” or diluted, at each level down the chain.
This applies even with less obvious drugs, such as marijuana, where the weight of stalks and stems of seized marijuana plants can be included in aggregate weight even though they are useless as drugs. The message is, you pay by the pound, regardless. It simplified the police and prosecutorial function, even as it undermines any doctrinal justification for the charge and sentence.
For those of us in the trenches, these are old news, old issues that we had long forgotten matter immensely but may remain off the public’s radar. As we discuss the failings of the system in general, and drug prosecutions in particular, these are huge, fundamental components of how low level people, “minimal participants” in Guidelines lingo, find themselves staring at life plus cancer sentences. Sometimes, they don’t have the slightest clue what the weight involved might be, never touching any drug. And yet, they are held legally culpable for every iota.
That we (I?) may have taken all this for granted is a mistake. As Radley and Osler note, this too needs to be brought to the public’s attention, and this too needs to be subject to scrutiny. As Osler wrote, this is a proxy for culpability, and it’s a lousy one. Damn right.