One of the gravest failings of the federal sentencing guidelines has been its failure, or actually its refusal, to distinguish between the drug kingpin and the delivery boy.  While this is an argument that has been made innumerable times in an effort to persuade a judge to make a downward departure and risk reversal, the plain fact is that the United States Sentencing Commission realized the problem and chose to ignore it.

Fortunately, one of the boldest and smartest on the federal bench, Massachusetts District Court Judge Nancy Gertner, empowered by Gall and Kimbrough, has issued a decision that calls it the way it is.  In U.S. v. Cabrera, via Doug Berman at Sentencing Law and Policy, Judge Gertner explained why quantity-based sentencing is absurd for the “little guy” in the middle of a big drug deal:

Oscar Cabrera (“Cabrera”) was, at most, a delivery man caught in a government sting. He hardly fits the profile of a major drug dealer.  He was told — apparently at the last minute — to pick up the drugs that undercover government agents had brought from Texas.  At the time of the deal, he was homeless, living out of his car; he had little or no idea about what was going on in the drug deal; he had no role in negotiating it, no money with him at the time of the sting, and was not remotely capable of investing in this drug transaction, or for that matter, any other.The real purchasers did not trust him with much, and surely not the drug money. He was to receive perhaps $250 to $500 (the amount was never set) for drugs valued far, far more than that. He had no prior criminal record. The agents had no idea who he was prior to his arrest. The real purchasers got away.  Cabrera was caught — quite literally — holding the bag.

This scenario is commonplace.  What isn’t normal is that the judge had been able to take reality into account in dealing with the Cabreras of the world.  Nobody is saying that Oscar is a poor innocent fellow for his involvement in a drug deal.  But he isn’t a drug kingpin either, though in the past he would receive a sentence only slightly less than the person at the top of the foodchain, assuming he received a minor or minimal role adjustment and possibly safety valve.

The statute under which Cabrera was prosecuted, and the Federal Sentencing Guidelines, focus largely on the quantity of drugs the defendant had, minimizing the significance of other relevant — and important — questions, like the defendant’s real role in the offense or his background….  If I were to follow the Guidelines and sentence Cabrera solely on the basis of the drugs government agents brought with them, the result would be a classic case of false uniformity. False uniformity occurs when we treat equally individuals who are not remotely equal because we permit a single consideration, like drug quantity, to mask other important factors.  Drug quantity under the Guidelines treats as similar the drug dealers who stood to gain a substantial profit, here the purchasers who escaped, and the deliveryman, Cabrera, who received little more than piecework wages.

The assumption, implicit in the guidelines, that everyone involved in a drug deal shares relatively equal culpability has long been painfully ridiculous, and yet has been the basis for federal sentencing since 1987.  Judge Gertner writes:

[T]he Sentencing Commission has never explained how drug quantity is meant to measure offense seriousness, and significantly, how it correlates with the purposes of sentencing under 18 U.S.C. § 3553(a). The only explanation, which one has to infer from the Guidelines, is that drug quantity is somehow a proxy for culpability. The problem is that sometimes it is an adequate proxy, and sometimes it is not.

What is shocking is not the obviousness of Judge Gertner’s decision, but that judges were compelled to sentence based upon quantity-dictated guidelines for 20 years despite their absurd result for so many defendants.  Much as a I hate to say this, many judges before whom I appeared in drug cases didn’t seem to have any serious qualm with sentencing the “little guy” to decades in prison. 

It remains to be seen whether Gall and Kimbrough will have the impact on Circuit Courts of Appeals that the Supreme Court intended (as in telling them that they really meant what they said in Booker), and whether the sanity of Judge Gertner’s decision will survive review, but her point is clear and undeniable. 

Sadly, this does nothing for 20 years worth of “little people” sitting in prison for the better part of their lives to honor the false god of uniformity.