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July 25, 2008

Judge Gertner assails quantity-based drug guidelines

District Judge Nancy Gertner has a new opinion which takes on and takes down the notion that drug quantities provide a sound basis for sentencing levels.   Here are parts of the start of Judge Gertner's work in US v. Cabrera, No. 06cr10343-NG (D. Mass. July 25, 2008) (available for download below):

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.

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.

Download gertner_cabrera_final.pdf

July 25, 2008 at 07:16 PM | Permalink


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Tracked on Jul 26, 2008 8:59:03 AM


How sad. The dealer gets away free, the government gets another statistic, the prison system gets another profit center; all off the back of some poor dude living out of his car. Aint the American Way just grand?

Posted by: Daniel | Jul 25, 2008 7:31:17 PM

So by the guidelines the defendant's guideline sentence went from the mandatory minimum of 120 months to a guideline range of 37 to 46 months. That seems like a clear recognition that some defendants are more culpable than others. The judge may well feel justified in bemoaning the focus on drug quantity - but what is the alternative? Drug quantity measures both the potential profit from the criminal activity and the potential harm to the community. The judge may think the guidelines are too focused on quantity - but she was able (within an advisory guideline system) to fashion a sentence that made sense to her.

This seems like a very ordinary case - I'm not sure it's blogworthy.

Posted by: Alan O | Jul 26, 2008 10:12:05 AM

Bravo! Judge Gertner hit the nail directly on the head. The subject and predicate of a sentence must correspond, a principle the guidelines often fail to capture. Forget the guidelines when they are out of step with well established, good old common sense.

Posted by: Tom McGee | Jul 26, 2008 10:33:17 AM

Daniel wrote: "This seems like a very ordinary case - I'm not sure it's blogworthy."

3 to 4 years in prison for the crime of being homeless and expendable. Because we've invested drugs with extraordinary 'value' by declaring war on them.

US prison population has exploded (I realize the readers of this site know this). But do you also know, or remember, that crimes that are considered felonies, instead of misdemeanors have also exploded. Increasingly, it seems that everything is a 'crime.' Even prior convictions for a crime, is a crime as in three strikes and you're in prison forever. We are not all in prison (though we're approaching it) because crimes and populations are selectively targeted.

Maybe the very 'ordinariness' of the case and the ordinariness of the extraordinary amount of time that ignorance can land one in jail should be a concern for anyone concerned about the state of this country.

The blog owner writes: "In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB"

But you've already guessed that I am none of the above.

Have a good day.

Posted by: | Jul 26, 2008 12:16:08 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB