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