Reforming Federal Drug Sentencing: From the Cutting Room Floor

In a recent post, I put up a preliminary draft of my testimony to the Sentencing Commission next week on retroactivity for the pending crack amendment. At the end of the statement, I included a general suggestion for reform of the drug sentencing guidelines. In my first draft, I had an additional suggestion, but then decided that it would be better for the testimony to be more focused. I thought it might nonetheless be of interest to others, so I set it forth below. By way of background, the drug guidelines are set up so that the guidelines range for any given quantity of drugs will be above the applicable statutory minimum. The minimums thus become anchoring points, and quantities above the minimum-triggering amounts get proportionately higher sentences. In effect, what the Commission has done is to incorporate and exacerbate the excessive harshness of the minimums in the guidelines. No statute requires the Commission to do this. Here's my advice to the Commission: The Commission should revisit the decision to build the drug-quantity table around the statutory minimums. The statutory minimums have proven remarkably sticky. The FSA itself is hardly an exception to the pattern of legislative inertia, given how long it took Congress to respond to the many compelling arguments for reducing the 100-1 ratio.[1] For the Commission to continue to adhere to long-ago legislative policy choices is itself contrary to the Congressional vision of an evolutionary guidelines system based on the best available evidence. Although the inter-branch dynamics are complex and unpredictable, it is even possible that guidelines amendments will stimulate statutory amendments. If not, discontinuities between the guidelines and statutory system are admittedly capable of producing markedly different sentences in otherwise similar cases. But it seems a bit perverse to deny one defendant a just sentence simply because other similar defendants are likely to fall prey to an unsound statutory regime. Moreover, the realities of the post-Booker, post-Kimbrough world should be recognized. District judges now have the authority on their own to generate the same disparities between defendants who fall just inside and just outside the web of statutory minimums. Large numbers of district judges-a majority with respect to some drug types and a very sizeable minority (over forty percent) with respect to others-believe that the drug mandatory minimums are too high.[2] The Commission should seek to provide credible, expert sentencing guidance to these judges when they have cases that fall outside than minimums, rather than insisting on the excessive minimums as a baseline. [1] Ronald F. Wright, Portable Minimalism in Sentencing Politics, 2011 Cardozo L. Rev. de novo 9. [2] Results of Survey, supra note 6, at 300.

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