"The Weight"

The title of this post is the title of this new essay authored by Mark William Osler now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

Baked into the mechanism for determining sentences in drug cases is an old, simple and pernicious machine for injustice: the use of the weight of narcotics to measure relative culpability for drug crimes.  At an instinctual level it makes sense, since someone selling 100 pills is doing more harm than another person who sells five.  But this ignores a basic fact about drug crimes: that they are business crimes that are committed by groups of people acting together, with different roles. That means the same deciding factor, the weight of the narcotics transported, is going to apply equally to both the mule who simply drives the drugs to a destination for a small payment and the mastermind who will ultimately make real money off the deal.  There is a better way — to tie relative culpability to the profit taken by an individual — and it is time to make this change.