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July 21, 2016

Guest posting from Prof Mark Osler with advice to US Sentencing Commission on revising drug sentencing guidelines

Earlier this month, federal sentencing reform guru Mark Osler informed me that he put together some suggestions for the US Sentencing Commission in response to its request for public comment about proposed priorities.  In turn, I urged Mark to put together a guest-post for this space to ensure his insights can be seen outside the Beltway.  Here is what he sent my way:

Each year, the United States Sentencing Commission goes through a seasonal cycle; it starts and ends in May, when the Commission publishes proposed amendments (closing out one cycle) while setting out proposed priorities and inviting public comments to begin the next cycle. This year the public comment period lasts until July 25. You can get more complete information at www.ussc.gov.

The proposed priorities for this year are strikingly broad and encouraging for reform advocates.  They include some specific items, including “consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c),” but also some fascinating broader priorities.  The line that really caught my attention was this one: “the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.”

For those fascinated by federal sentencing, could there be a more enticing invitation?

I have submitted my own comment, which Doug has kindly linked here [down below].  It grows out of the response I got to a New York Times op-ed I wrote in 2014, suggesting that the weight of narcotics used in a conspiracy is a lousy proxy for the culpability of any one conspirator, and that it would be much better to instead simply enhance sentences for those individuals who make the most money from a narcotics operation.  After that piece ran, I was surprised at the group I heard from the most: sentencing judges.  A few pointed out (correctly) that they had proposed this decades ago, while others simply affirmed the problem with weight of narcotics as the central metric for a drug sentence.  And, of course, they had depressing stories to share of sentences they had been forced to give out (pre-Booker) to low-level players in large narcotics organizations.

Here is how my comment begins:

Currently, because of the structure and importance of the Drug Quantity Table at Guideline §2D1.1(c), the primary input of sentence computation in narcotics cases is the weight of the drugs at issue, either by an individual or conspiracy.  However, weight of narcotics is not a good proxy for culpability because it unfairly punishes the actions of too many low-level traffickers.  If a true kingpin imports 150 kilograms of cocaine into the country and pays a trucker $1,000 to haul it, both of them fall under Guideline §2D1.1(c)(2), which provides for a base offense level of 36. While guideline sections §3B1.1 & 1.2 (distinguishing roles in the offense) provide some level of differentiation, that differentiation will likely be at most a swing of six offense levels.

We all know that the one-off trucker is not nearly as culpable as the kingpin, but the guidelines don’t reflect that because weight-driven sentences are mandated by Guideline §2D1.1(c).  Sentencing judges have chafed at the resulting failure of proportionality ever since the beginning of the guideline era.

The false proxy of narcotics weight creates problems with proportionality and disparities because it too often obscures actual role and culpability.  Moreover, it imposes a complexity to the guidelines that is unnecessary.

After discussing the benefits and challenges of making such a change, I suggest three alternate ways to amend the guidelines and accomplish this goal.

Perhaps you agree with me, maybe you don’t, or it could be that you think there is a much cleaner route to simplicity, proportionality, and the reduction of disparities.  I urge you not only to read the rest of my comment, but to submit your own while the window is still open.

Download USSC comment 2016

July 21, 2016 at 12:25 PM | Permalink


How often, empirically, do low-level players get hammered?

Posted by: federalist | Jul 21, 2016 12:30:19 PM

Last time I looked (which was a while ago) low level players *did* get hammered. Not all the time, but some of the time. Some of the cases were, frankly, heartbroken. Destitute mules looking to pick up a few bucks. Girlfriends who answered a few phone calls taking messages. Really awful.

I've been in this field for 30 years. I just ran across a memo I wrote in the early 1990's making the exact same criticism, and using almost the exact same example, as Prof Mark Osler makes -- that too much "weight" is given to drug weight.

Same ole', same ole' . . .

Posted by: ADCWonk | Jul 21, 2016 12:37:25 PM

The rationale for sentencing based upon drug weight has having nothing to do with culpability. Rather the justification is market disruption--the same reason used to justify harsh sentencing in child porn cases. So the reason we go after low level drug offenders is not because they are as morally blameworthy as drug kingpins but because we need to do so in order to have any chance of breaking up the market for drugs.

I recognize that there are lots of people who think that someone peering at a picture of a naked child is worthy of greater censure than someone who participates in drug deals that lead to tens of thousands of deaths each year but come on, at least in drug dealing there is an actual market to disrupt instead of the imaginary one for child porn that the FBI dreams up.

Note that for the record I'm not opposed to getting rid of sentencing based upon drug weights but only if there is a better way to disrupt drug markets. I don't seen that consideration being talked about at all.

Posted by: Daniel | Jul 21, 2016 12:51:22 PM

Daniel, if you look at the comment itself, you will see that I talk about market disruption. I think you will more efficiently disrupt markets by using profit as a metric.

Posted by: Mark Osler | Jul 21, 2016 2:54:17 PM

We should focus on the selection of judges. Together with that, give judges much more discretion. A defendant should walk if he is not likely to sell a joint or a pound of heroin again and if he can live a good life out in the real world. Jail is for those who went to Yale.

Posted by: Liberty1st | Jul 21, 2016 6:14:47 PM


(a little red faced). I should have clicked through to your comments rather than going off of Doug's summary. Now that I have read your comments my initial reaction is a certain degree of skepticism because I am not assured that profit is a good metric for social harm. However, I really don't understand enough about drugs markets to make a fair evaluation. I think profit is an interesting idea and I'll leave it at that.

Posted by: Daniel | Jul 21, 2016 8:49:42 PM

I'm having trouble understanding. With a charge of conspiracy to launder I see the offender who goes to trial and is found guilty of the entire amount of the perceived value of the product for the whole conspiracy.

Posted by: beth | Jul 21, 2016 9:51:06 PM

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