Sentencing Law and Policy

Controlled Substances # 3: Measuring Culpability by Measuring Drugs?

Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

The drug sentencing chapter in my casebook involved a bit of a balancing act.  Students need to have some understanding of foundational sentencing principles in order to make sense of the sentencing problems specific to drugs.  But, of course, there is a risk of wading too far into a subject as rich and complex as sentencing and going off-track. 

Ultimately, I decided to keep the focus on drug sentencing issues as much as possible.  I begin the chapter with a few pieces to contextualize modern sentencing practice, without getting into too many of the specifics.  (I should add that one of the lead items in this section is an excerpt from Doug Berman’s excellent Reconceptualizing Sentencing, 2005 University of Chicago Legal Forum 1.)  From there, the chapter moves right into the material drug sentencing.

Drug sentencing poses particularly difficult grading problems.  For crimes like murder or robbery, the essence of what makes the conduct wrongful is easy to grasp.  There may be disagreement about how to differentiate more and less serious homicides, for example, but the contours of the debate tend to present themselves more naturally.  Few would disagree that a person who kills “recklessly” should typically receive a lower sentence than someone who kills “intentionally” and so on. 

I believe there is much less agreement about what it is that makes drug crimes fundamentally wrongful.  Is it the quantity of drugs involved?  The role the defendant played in the specific offense?  The defendant’s motive for becoming involved in drugs (for example, should a drug courier who is an addict be sentenced differently from one who is not)?  The defendant’s overall position in the drug enterprise (to the extent this can ever be pinpointed)?  (The argument that drug crimes are “victimless” and therefore not blameworthy at all is considered elsewhere in the casebook.)

Federal drug laws, and the laws of many states, have answered this problem by focusing largely on drug type and quantity.  The chapter begins with materials that look at this phenomenon.  Students will see the relationship between drug quantity and determinate sentencing laws.  Determinate sentencing requires measurables to work effectively and drug type and quantity are two of the easiest things to measure.  Certainly, weighing drugs is much easier than, for example, trying to define and prove someone guilty of being a “drug kingpin.”  But, is drug quantity really an accurate measure of culpability?  This is a theme that runs throughout the chapter with cases that continue to ask students to consider what factors should drive drug sentences. 

Students also confront a number of practice-oriented problems.  United States v. Hickman, 626 F.3d 756 (4th Cir. 2010), for example, centers on a drug conspiracy quantity calculation.  The conspiracy was not sprawling by any means.  It involved just a few discrete transactions, planned transactions, and confiscated drug amounts.  But putting all of the numbers together to reach a quantity still proves to be quite a chore.  Hickman displays some of the methods courts use to calculate drug quantity in a conspiracy.

Drug sentencing also provides a great vehicle for thinking about prosecutorial discretion.  The issue comes up throughout the chapter, in cases on providing substantial assistance, drug sentencing and the Eighth Amendment, and the crack-powder sentencing disparity.  Toward the end of the chapter, prosecutorial discretion becomes the focus in a section devoted to the issue. 

The central case in this section is the 2012 decision, United States v. Dossie , which was almost released too late to make it into the book.  I’m very glad I was able to include it.  In Dossie, Judge Gleeson, urges the Department of Justice to adopt a policy to curtail the reserve mandatory minimum sentences for only a small subset of offenders.  The decision is a great one for drawing students into a discussion about prosecutorial discretion.  Dossie’s discussion of mandatory minimums and drug quantity also ties together a number of different points from the chapter.

Prior post in series:

• Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
• Controlled Substances # 1: Teaching Drug Possession
• Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done

Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done

Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

The drug kingpin is a familiar figure in movies and televisions shows about the drug trade.  And in the movies, the kingpin is usually easy enough to describe.  The kingpin is the cold, calculating head of a criminal enterprise, making large amounts and using force to maintain his or her power.  In the law, however, kingpins are much harder to identify. This theme comes up in a few different parts of my casebook.

As a matter of legislative drafting, defining drug kingpins presents a few difficult challenges.  I highlight the issues with a pair of cases: United States v. Witek, 61 F.3d 819 (11th Cir. 1995) and New Jersey v. Alexander, 136 N.J. 563 (1994).

Witek concerns the federal “continuing criminal enterprise (CCE)” offense.  Created by Congress in 1970 as part of the Controlled Substances Act, CCE requires the defendant engage in a “continuing series” of federal drug crimes “which are undertaken . . . in concert with five or more other persons with respect to whom [the defendant] occupies a position of organizer, a supervisory position, or any other position of management and from which [the defendant] obtains substantial income or resources.” 21 U.S.C. § 848.  In Witek, the Court overturns the defendant’s CCE conviction, finding he only supervised two people within the meaning of the statute, not five.

In Alexander, we see a different approach to identifying drug kingpins.  The New Jersey law at issue provided for a 25 year-to-life sentence for anyone who was “a leader of a narcotics trafficking network.”  But leader was defined quite broadly, as conspiring “with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport” a controlled substance in New Jersey.  In Alexander, the New Jersey Supreme Court tries to reconcile the legislature’s stated purpose of targeting drug kingpins with language that would seem to apply to people much much lower on the totem poll.  Ultimately, the Court engrafts an additional requirement onto the law — that the government prove the defendant was an “upper echelon” leader, superior to street level distributors—over a vigorous dissent.

Together, the cases reveal a couple of different problems when it comes to kingpins.  First, trying to translate our image of a “kingpin” into legislation is no easy task.  The federal CCE statute is pretty specific, but even this law might be criticized as sweeping too broadly.  Indeed, courts have held that a “defendant need not be the dominant organizer or manager of a criminal enterprise; the statute only requires that he occupy some managerial position.”  US v. Becton, 751 F.2d 250 (8th Cir. 1984). Yet, at the same time, it may not reach broadly enough.  Drug kingpins may try to insulate themselves by dealing with only a few people directly and keeping others at arms-length.  Arguably, this is what results in the reversal in Witek: the defendant was found not to have supervised street-level dealers with whom he had only a buyer-seller relationship.

New Jersey lawmakers tried a more flexible approach than CCE but wound up with a law that even the Alexander dissent acknowledged was much broader than its stated purpose.  Moreover, the majority’s “upper echelon” fix is not a model of clarity.  The Court defines an “upper echelon” drug leaders as “one who occupies a significant or important position in the organization and exercises substantial authority and control over its operations.”  Is it possible to discern what evidence a prosecutor would need to put on to meet this test?

The second key challenge is that, to the extent “drug kingpin” can be precisely defined, the result will inevitably be a crime that is very difficult to prove — not just in terms of collecting the evidence but putting on the case.  Proving that someone was a manager or supervisor of five people is a potentially time consuming proposition.  This may be one reason that CCE is rarely prosecuted: of the 22,911 defendants sentenced for a federal drug offense in 2009, only 22 were convicted of CCE.

Another reason may be that CCE does not provide the enforcement value today that it once might have. When Congressed passed the Controlled Substances Act, CCE was alone in providing for a stiff mandatory minimum sentence upon conviction.  Today, of course, federal drug laws are replete with mandatory minimums.

Indeed, in Witek, the defendant appears to emerge victorious, with his CCE conviction overturned. What did this “win” mean in practical terms?  Not much at all.  The guy still ends up with a life sentence based on his conspiracy conviction.  In a footnote at the end of the decision, the Court explains: “As we affirm [the defendant’s] other convictions, the only collateral consequence of vacating his CCE conviction is eliminating the $250 special assessment imposed for that count.”

The question of drug kingpins arises in other settings in the book as well.  The high cost of wiretaps, for example, may be another barrier to kingpin prosecutions.  Drug sentencing laws arguably give a perverse incentive to use upper-level players to catch more small fries, rather than the way around.

Together, the materials show why we haven’t been able to “win” the drug war by “taking out the kingpins.” Defining, locating, and prosecuting drug kingpins is much easier said than done.

Prior post in series:

• Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
• Controlled Substances # 1: Teaching Drug Possession

Controlled Substances # 1: Teaching Drug Possession

Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

Drug laws raise a range of policy questions that are likely to have obvious appeal to anyone interested in the criminal justice system. From marijuana legalization to the role of race in the enforcement of drug laws, a course on Controlled Substances offers a lot of interesting issues to consider and debate.

But what about the drug laws themselves? I think there is a misperception among some criminal law teachers that the law of drug crimes is simple. Nothing could be further from the truth.

Take drug possession. Does possession in the criminal law mean ownership or something else? During alcohol prohibition, most courts equated possession with something close to ownership and overturned the convictions of defendants who had only temporarily held alcohol in their hands to drink it. As one Judge explained: “Possession of whisky within the meaning of the prohibition law contemplates a control of the whisky, whereas when the whisky is in the main the whisky controls the man.” The same does not seem to be true today for drugs.

In the first possession case in my book, Hawaii v. Hogue, 52 Haw. 660 (1971), the defendant was convicted after taking a marijuana pipe from another person, drawing a couple of puffs from it, and passing it to someone else. In a brief opinion, the majority upholds Hogue’s conviction over a longer dissent that relies heavily on the alcohol prohibition-era precedent. The dissent argues that by criminalizing possession, rather than use, the legislature indicated it “did not intend to prohibit the use of marihuana directly” and so the court “should not indirectly do so by broadly defining possession so as to include the superficial custody required for the immediate inhalation of marihuana.”

The majority does not engage the dissent on this point, which provides a nice opportunity to get students actively thinking about whether this is really true, along with the broader question: What, exactly, do we seek to punish by criminalizing possession? The classroom discussion will highlight the different possible goals we might be trying to achieve by criminalizing drug possession. It will also draw out a very plausible alternative to the dissent’s view: maybe the legislature decided to criminalize possession rather than use because use is typically harder to uncover than possession. If that is the case, there would be nothing incompatible with legislative intent in punishing Hogue.

At the heart of the section on possession is a series of constructive possession cases. Constructive possession is the theory by which a person can be convicted of possessing an item that she does not hold in her hands. If I live alone and the police find drugs in my dresser drawer with my fingerprints on the baggie, constructive possession is easy. Beyond that, however, things can get a little trickier.

What happens if I’m staying in a hotel with a friend and the police come inside and find drugs on the bathroom counter? The case law almost uniformly says this sort of evidence, alone, is not enough to prove beyond a reasonable doubt that either one of us possessed the drugs. To convict me of possession, the government must prove I had the power and intent to exercise dominion and control over the drugs. Proof that I was present in a place with drugs and that I knew they were there isn’t enough.

Courts have struggled to outline exactly what is needed to convict someone in an ambiguous constructive scenario case, however. A furtive movement? Actual possession of a large amount of cash? Actual possession of drug paraphernalia? At what point can a rational jury conclude beyond a reasonable doubt that someone found near drugs is guilty of possession and not just in the wrong place at the wrong time? Trying to find an answer can be a little frustrating at times. Indeed, in 1971, D.C. Circuit Court Judge Tamm remarked that “[t]he more cases one reads on constructive possession, the deeper is he plunged into a thicket of subjectivity.” But, it is also a fun and rewarding intellectual challenge.

In the book, I include constructive possession cases in a few specific settings: vehicles, so-called “open air” drug markets, and go-betweens. These cases provide an excellent opportunity to consider broader criminal law problems, including the distinction between knowledge and intent, the proof beyond a reasonable doubt standard, and the dividing line between the fact finder and the court.

I’ll close this post with a few words about the practical relevance of possession. In 2011, there were 1.25 million arrests for drug possession, more than for any other single crime except larceny at 1.26 million. Possession also comes up in other contexts throughout the criminal law (gun possession, possession of burglar’s tools, etc.). Almost every law student who goes onto practice criminal law will see their share of possession cases—whether it is a border bust or a baggie of drugs under a passenger’s seat. At a time when law schools are rightly concerned about making students more practice ready, I think there is a strong case to be made that possession deserves at least as much attention in our criminal law curriculum as, for example, homicide offenses.

Prior post in series:

• Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"

Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"

Especially because early Thursday morning I am heading out on a muti-day trip (involving both work and play) that will lessen my blogging opportunities, I am very pleased to be able to welcome Professor Alex Kreit as a guest-blogger to discuss his new casebook, Controlled Substances: Crime, Regulation, and Policy.  I plan to teach a new seminar from this new text (which I will discuss in this space in a few weeks), and I am eager to hear all that Alex has to say about his work and work-product. And here are his first comments:

Thanks so much to Doug Berman for giving the opportunity to blog about my recently published casebook, Controlled Substances: Crime, Regulation, and Policy.   I plan to do a short series of posts on about the book and about teaching law school courses on drug law and policy.

I don’t think it would be an exaggeration to say that no development has had a bigger impact on our criminal justice system over the past four decades than the war on drugs. The drug war has been a driving factor in the explosion in our prison population, with drug offenders accounting for about one fifth of our nation’s prisoners.  Our drug laws have also had significant impacts on a range of other issues, from the nature of policing to race and the criminal justice system.  Yet, while modern drug laws have dramatically changed our criminal justice system, they have been strangely absent from the curriculum at most law schools.  Every criminal law casebook devotes significant coverage to homicide and property crimes, but only a handful — at most — include a chapter or section on drug offenses.  Though criminal procedure courses are filled with drug cases, this is only because so many leading Fourth, Fifth, and Sixth Amendment decisions happened to involve drug investigations; not because drug law or policy is a special point of concern in criminal procedure courses.  Likewise, only a small fraction of law schools currently offer a seminar on drug law and policy.

Indeed, at most law schools today, a student could take every single criminal law-related offering without studying drug law and policy.

Why is this?   I must confess that, despite giving the question a lot of thought during my book project, I’m still not quite sure.   I suspect — and hope — that a lack of prepared materials may be partly to blame.   To my knowledge, before the publication of my new book, the last casebook dedicated to drug abuse and the law was published in 1983 (Gerald F. Uelmen and Victor G. Haddox’s Drug Abuse and the Law.)

Whatever the reason for the inattention to drug laws, teachers and students alike have been the poorer for their absence from law schools.  A course on controlled substances provides a uniquely rich mix of complex legal and policy problems.   A close look at the law of drug crimes reveals unusually tough challenges for how to define, prove, and grade criminal conduct.  The enforcement of drug laws, meanwhile, provides an ideal vehicle for studying a number of important issues often overlooked in law classes like prosecutorial discretion, the use of informants in modern policing, and racial profiling.   Drug prohibition also presents one of the most difficult tests for the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be crimes.  Many theorists and policy analysts, however, believe that drug criminalization is unjust or unworkable.

From beginning to end, drug law and policy provides an intellectually engaging experience. Students who plan on becoming prosecutors or defense attorneys will learn about an area of the law that will inevitably occupy a large percentage of their practice.   Others will enjoy engaging with fascinating theoretical and policy problems.  And, with marijuana legalization now the law in two states and quickly shifting political views on the drug war generally, students have a real enthusiasm and interest in taking and learning about this subject.

The absence of a casebook in the field led me to write my book, which I hope will help contribute to seeing the subject taught in more law schools.   In upcoming posts, I plan to talk a bit more about some of the different issues that can be taught using my book, designing a drug law course, and more.

One last note for now: If you think you might be interested in teaching a course on controlled substances yourself — whether you are a full-time professor or a practicing attorney — please feel free to contact me directly any time.  I’d be happy to provide additional information like sample syllabi and, for prospective adjuncts, advice on how to submit a course proposal.