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July 2, 2016

"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"

The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN.  Here is the abstract:

After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies.  This includes couriers and mules who transport drugs for small amounts of money.

Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions.  The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers.  This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions.  Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules.  These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.

This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants.  An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants.  It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability.  And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions.  Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating.  Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.

July 2, 2016 at 01:41 PM | Permalink


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