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December 2, 2004

Spotlighting problems with quantity-based sentencing

Continuing its amazing work on sentencing issues, the Wall Street Journal today has this terrific article on how drug weights play a critical (and highly problematic) role in federal sentencing determinations.  (A subscription is required for on-line access, which I have finally bought.)  Some of the other recent potent WSJ sentencing articles, on issues ranging from snitching to Blakely, can be found here and here and here and here.

Today's article by Gary Fields is entitled "Imperfect Measure: In Drug Sentences, Guesswork Often Plays Heavy Role," and it spotlights the realities of — and serious problems with — the federal sentencing system's heavy reliance on drug weights to determine sentencing outcomes.  Here are just some highlights from the article, which includes a number of amazing stories about how arbitrary a sentencing system can become when it relies greatly on precise drug quantities:

Under 1987 federal sentencing guidelines and other federal laws, the amount of drugs involved in a crime is crucial....  The goal of the guidelines is to standardize sentences, so that criminals dealing in the same amount of drugs get roughly the same sentence.

But when it comes to measuring the weight of drugs, procedures around the country are anything but standard. The amount of cocaine or marijuana in the defendant's possession is just the start: What really matters is how much a person intended to procure or produce. That question leads the justice system into a speculative realm where botanists, chemists and forensic scientists imagine what might have happened if the defendant had had more time or skill.

The government is "very arbitrary in the way they are calculating yields that aren't based on any scientific foundation," says Warren James Woodford, an independent research biochemist who has testified about drug yields in many federal cases, often for the defense.

Prosecutors and defense lawyers have debated, for example, whether a man who hoarded bags of Chinese tea could have made a significant quantity of speed from it were he an expert chemist -- which he wasn't. Another man was caught growing thousands of baby marijuana plants. Had they grown up, how much marijuana would they have yielded? The answers to such questions can mean the difference of a decade or more in a prison sentence.

December 2, 2004 at 11:13 AM | Permalink


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As a federal probation officer, I found the snipets you have of Fields' article myopic (maybe the whole article is such). Of course, the parties debate about plants yeilds and potential drug yields, but what are the findings? Fact-finding Judges assisted by objective federal probation officers should help make the process fair. Such debate or the aggressiveness of prosecutors do not make drug quantity-based sentencing necessarily unfair.

Posted by: Eric Storms | Dec 2, 2004 12:54:47 PM

This dubious logic is not unlike the strained stretches of imagination that are used in interpreting the USSG with respect to the amount of loss that adds decades to a corporate white collar fraud defendant’s sentence. The most junior employee accused of conspiracy fraud can be held criminally responsible for the perceived loss to shareholders related to assumed reactions to changed financial statements and disclosures that that level of employee could not possibly have affected themselves and which frankly would take a bonafide mind reader to determine. A prior article I read compared the risks of working for a Fortune 10 company which basically considers the scenario of an employee at Microsoft who works on a project that is perceived to lower share price by 4cents could be sentenced to life in prison under the federal guidelines. Never mind that out of Microsoft’s almost 11 billion shares outstanding, not all have truly lost those few cents, who cares that the stock likely fluctuates by 10 times that much every hour of every day, so what if there is no intelligent and fair-minded way to actually calculate an actual loss to anyone or that some of the presumed "victims" actually profited. And don’t assume that one’s innocence of criminal knowledge or intent is a sure fire way to be cleared of a charge. Alternatively, a bank robber who steals a million dollars for themselves wouldn’t get nearly that amount of time. Who cares that it makes no sense --- lock up the corporate accounting clerk forever but please let’s be sure to keep the murderers and child molesters and drug kingpins around! These prosecutors who champion this type of “creative” deciphering and cushy "assistance" deals for criminal kingpins ought to really take a step back and look at what they are really accomplishing. And Congress ought to really take a step forward and remember that these are real lives that may have real value not just pennies or ounces on a chart.

Posted by: NL | Dec 2, 2004 1:58:47 PM

To me, the most troubling part of Eric Storms's comment is the phrase "objective federal probation officers." Is that an oxymoron? However well-intentioned, these officers cannot be objective, by the very nature of the role the system has assigned them.

The guillotine laddering of quantity-based sentencing is devastatingly unfair. Many years of a defendant's life can turn on a milligram.

Posted by: Marc Shepherd | Dec 2, 2004 3:00:09 PM

I guess I do, idealistically, believe the probation officers can be objective. The Judiciary is expecting them to be so. In the federal system, P.O.s are work for the Judiciary and assist in USSG application. The sentencing process is intended to be a punishment process so the process will always be distateful to some. But my humble point was that it is a process--a human process--that will by that nature be imperfect. I am pleased that Blakey has aroused a hearty discussion of the USSG and federal sentencing process, if nothing else is accomplished. Being in the arena of ideas is a great thing!

Posted by: E. Storms | Dec 2, 2004 6:54:09 PM

"Objective federal probation officers" is of course a troublesome phrase, as is, "The sentencing process is intended to be a punishment process", both offered by Mr. Eric Storms. Even more troubling is that the second is the assertion of one presumably trying to be the first, especially in implementation of the inherently problematic quantity-based sentencing.

I would like to be a lay student of criminal sentencing, punishment and restorative justice. Although I try to read independently as much as possible about this topic, I don't believe I qualify as even a student yet, just an interested citizen. This is offered as a disclaimer regarding my above statement of opinion.

Posted by: Jeannie | Dec 2, 2004 7:47:40 PM

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