New York Times op-ed spotlights enduring flaw with modern drug sentencing

Today's New York Times has this notable new op-ed authored by Mark Osler under the headline "We Need Al Capone Drug Laws."  Here are highights:

After a ruinous 30-year experiment in harsh sentences for narcotics trafficking resulting in mass incarceration, policy makers are having second thoughts.  Many states, including Texas, have reformed their laws to shorten sentences.  Congress is giving serious consideration to the Smarter Sentencing Act, which would do the same. The United States Sentencing Commission has just adopted a proposal to revise federal guidelines.

And most recently, Attorney General Eric H. Holder Jr. announced that President Obama intends to use his executive pardon power to release hundreds or even thousands of federal prisoners with narcotics convictions (I am on a committee to train lawyers for the project).  Something like that hasn’t happened since President John F. Kennedy granted clemency to more than 200 prisoners convicted of drug crimes.

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure.  If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence.  That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant.  It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons....

Some laws create remarkably low thresholds for the highest penalties.  For example, my home state of Minnesota categorizes someone who sells just 10 grams of powder cocaine (the equivalent of 10 sugar packets) as guilty of a first-degree controlled-substance crime — the most serious of five felony categories.  There is no real differentiation between the most culpable wholesaler and an occasional street dealer.  

The problem with recent legal reforms is that they don’t dispose of this rotten infrastructure.  In 2010, Congress passed the Fair Sentencing Act, which changed the ratio between crack and powder cocaine for sentencing purposes from 100-to-1 (meaning the same sentence applied to 100 grams of powder cocaine and to 1 gram of crack) to 18-to-1.  

What the Fair Sentencing Act didn’t do is change the basic weight-centric centric focus that has filled our prisons with narcotics convicts. There were 4,749 such prisoners serving federal time in 1980, before the harshest weight-based standards were implemented. As of 2013, that number was 100,026. As for the drugs themselves, they’re still here....

A better measure of culpability would be the amount of profit that any individual took from the operation of a narcotics ring. Because narcotics conspiracies are nothing more or less than a business, they operate like any other business. The people who have the most important skills, capital at risk or entrepreneurial abilities take the most money. Statutes and guidelines should be rewritten so that profit thresholds replace narcotic weight thresholds. Only then will mules and street sellers properly face much shorter sentences than real kingpins.

This would, of course, create a new challenge for prosecutors and investigators, who would have to prove the amount of profit made by an individual defendant. It wouldn’t be as easy as snatching up mules and street dealers. But then “easy” and “justice” rarely rest comfortably with each other.