Putting Salve on the Sentencing Symptom

The  New York Times editorial calling for a “new safety valve” is one that holds a certain appeal for most of us. Both in its bipartisan support, and its recognition that the magic bullet solution of mandatory minimums, while simple enough for the masses to digest and embrace, lacks a certain reasoned fairness and efficacy, the possibility of changing this hideous concept should bring applause:

Congress’s new bipartisan task force on overcriminalization in the justice system held its first hearing earlier this month. It was a timely meeting: national crime rates are at historic lows, yet the federal prison system is operating at close to 40 percent over capacity.

In the 16-year period through fiscal 2011, the annual number of federal inmates increased from 37,091 to 76,216, with mandatory minimum sentences a driving factor. Almost half of them are in for drugs.

The problem starts with federal drug laws that focus heavily on the type and quantity of drugs involved in a crime rather than the role the defendant played. Federal prosecutors then seek mandatory sentences against defendants who are not leaders and managers of drug enterprises. The result is that 93 percent of those convicted of drug trafficking are low-level offenders.

Whether the details, not to mention the assumption and definitions, are precise isn’t terribly important. The two key sentences, one beginning the third quoted paragraph and the other ending it, are the ones to focus on. 

The final quoted sentence, that 93% of people convicted for drugs are “low-level offenders,” is the sort of argument intended to evoke sympathy, though there is no definition of what makes someone a low-level, as opposed to medium or higher level, offender. But it accepts the premise that any drug offender, even guys selling tons of the stuff, deserve to be punished to a term of imprisonment greater than murder.

What if the entire scheme was fundamentally flawed, a political joke if you will, perpetrated on a trusting but naïve public by a manipulative president and congress, who saw drugs as a bogeyman to be blamed for society’s ills, and used to create a demand for government to save them from it.  It gave politicians an easy punching bag, drug dealers, against whom laws could be passed to show the public what a wonderful job the government was doing protecting them from evil.

What if this scenario had the added virtue of not only getting those in office re-elected by adding a cynical law here and there, but convincing the public to relinquish rights to the government, allow and approve of these same politicians increasing their power and control, as a needed component of effectively fighting the evil enemy and protecting the public?  It’s the perfect set-up, really.

But this sounds like a wild conspiracy theory, right?  And if I told you this had happened, you would tell me to loosen my tin foil hat as it’s clearly pressing too hard on my brain.  But what if it wasn’t me saying this, but former Assistant United States Attorney, now United States District Court Judge John Gleeson?


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.

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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. 

That Congress is finally prepared to revisit the notion that more than two generations of living under a legal regime driven by news story that caught the public’s interest and fed its naiveté sufficiently to influence our acceptance of the notion that illegal drugs were a plague that had to be stopped at all costs, is a good thing.  But they’re still only looking at the symptoms, one of which is mandatory minimums. 

The revelation that the drugs tables (and its the same from the fraud tables even though you didn’t ask) in the Sentencing Guidelines were made out of whole cloth, reveal the disease.  We have functioned since 1987 under the mistaken belief that the Guidelines offer some empirical basis for sentencing people for crimes. We spent the vast majority of that time praying to the Guidelines, as if the number 161 was infallible, or brought down by Moses and enshrined on the alter of punishment.

What if it’s all just a bunch of numbers that some guys in a room in Washington made up on their own, out of thin air?  After a couple generations of putting people in prison based on them, many people, tens of thousands of people, the made-up numbers that came out of that room took on the appearance of Truth.  Ten years was the sentence because, well, it’s been the sentence for a very long time.

This isn’t to blame the New York Times for thinking small. It’s what the Times does best, and conventional wisdom is to stick with what works for you.  But as reform happens, it’s worthwhile to remember what is being reformed.  Moses didn’t bring the Guidelines down from the mountain. There was no massive empirical study that conclusively proved that 161 months was the right number for drug dealers. 

And here’s a question that will rock the foundations of penal belief: What if drugs, regardless of whether you support legalization or not, aren’t as great a scourge on society as we’ve come to believe, and that drug dealers shouldn’t be punished as harshly as murderers?  What if the worst drug dealer, the one who sold the most drugs in the whole wide world, still wasn’t as bad as a murderer?

But drug dealers commit other crimes too, you say? So they get prosecuted and sentenced for those other crimes. Yet, the days when punishment was calibrated by the relative harm done by a crime got all screwed up because Len Bias happened to OD while Congress was noodling how to screw with our heads over the sentencing guidelines, and here we are, more than two generations later, trying to figure out where we went wrong and what we can do to fix it.