A Better Federal Drug Guideline

A proposal and essay to help start a conversation about a simpler, more just federal sentencing guideline for drug trafficking offenses (and maybe a simpler, more just Guidelines Manual too)

Oct 14, 2024

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

(a) Base Offense Level (Apply the greatest):

(1) the offense level specified in the Culpabilty/Harm Table set forth in subsection (b);

(2) 38, if death resulted from the use of the substance and the defendant distributed the substance knowing or having reason to know that it contained a lethal dose;

(3) 32, if serious bodily injury resulted from the use of the substance and the defendant distributed the substance knowing or having reason to know that it contained a lethal dose;

(4) 26, if death or serious bodily injury otherwise resulted from the use of the substance.

(b) Culpability/Harm Table

The court should determine the offender’s culpability with reference to the following instructions and factors, and the harm involved in the offense with reference to the Drug Harm Category Table below. Courts should consult the Commission’s website for examples of offender functions and roles associated with different culpability classifications.

In assessing culpability, the court should examine all factors related to the defendant’s function and role in the offense. Where there are characteristics present which fall under different culpability categories, or where the level of the defendant’s function is affected by the scale of the operation, the court should balance these characteristics to reach a fair assessment of the offender’s overall culpability.

Being an organizer, leader, manager, or supervisor of criminal activity that involved three or more participants demonstrates at least significant culpability. Being a minimal participant demonstrates lesser culpability. Do not apply any adjustment under Chapter Three, Part B.

Culpability demonstrated by the defendant’s function in the offense

One or more of these characteristics may demonstrate the defendant’s function and the appropriate culpability. These lists are not exhaustive.

High Culpability:

Directing or organizing buying and selling on a commercial scale
Substantial links to, and influence on, others in a manufacturing and/or distribution chain
Close links to the original source of the substance
Expectation of substantial financial or other gain or advantage as a result of the offense
Use of a business as a cover for the offense
Abuse of a position of trust or responsibility

Significant culpability:

Operational or management function within a manufacturing and/or distribution chain
Involved others in the operation whether by pressure, influence, intimidation, or reward
Expectation of significant financial or other advantage (save where this advantage is limited to meeting the defendant’s own drug use), whether or not operating alone
An awareness and understanding of the scale of operation

Lesser culpability:

Performed a limited function under the direction of others
Engaged in the offense by pressure, coercion, intimidation, grooming, and/or control
Involvement in the offense through naivety, immaturity, or exploitation
No influence on those above in the manufacturing and/or distribution chain
Very little, if any, awareness or understanding of the scale of operation
Expectation of limited financial or other advantage (including meeting the defendant’s own habit)

Harm

Assessing harm is done with reference to the type and weight of the substance. Where the offense involves supplying directly to users (including street dealing or supplying in a custodial institution), the quantity of product is less indicative of the harm caused and therefore the starting point is not solely based on weight. The court should consider all offenses involving supplying directly to users or in a custodial institution as Category 3 harm and should consider as an aggravating or mitigating factor under subsection (c)(3) the weight of drugs in the particular case.

Indicative weights of the most common drugs, upon which the starting point is to be based, are given in the Drug Harm Category Table below, which includes Converted Drug Weight. Where a drug is not listed in the Table and there is no Converted Drug Weight, the court should seek expert evidence to assist in determining the potency of the particular drug and in equating the type and weight in the case with the drug types and weights set out in the Table. There will often be no precise calculation possible, but courts are reminded that in cases of particularly potent drugs, even very small quantities may be held to be equivalent to large quantities of the drugs listed.

(1) If a dangerous weapon (including a firearm) was used or if violence was used or threatened, increase by 3 levels.

(2) If the defendant meets the criteria set forth in paragraphs (1)–(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.

(3) If after considering other offense-related aggravating and mitigating factors, including those listed immediately below, aggravating factors predominate, increase by 2 levels. If mitigating factors predominate, decrease by 2 levels.

Aggravating Factors:

An aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance
A submersible vessel or semi-submersible vessel was used
The defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance
The object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility
The defendant was convicted under 21 U.S.C. § 865 or § 841(g)(1)(A)
The distribution took place through mass-marketing
An anabolic steroid was distributed to an athlete
The offense involved a bribe of, or an attempt to bribe, a law enforcement officer to facilitate the commission of the offense
The offense involved knowing misrepresentation of a substance as a legitimately manufactured drug
The offense involved (i) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of a hazardous waste
A minor was significantly exposed to the offense
The offense created a substantial risk of harm to the environment
The offense involved the cultivation or manufacture of drugs on state or federal land
The defendant used fear, impulse, friendship, affection, or some combination thereof to involve another in the offense
The defendant, knowing that an individual was (i) less than 18 years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv) unusually vulnerable due to physical or mental condition or otherwise particularly susceptible to the criminal conduct, distributed a controlled substance to that individual or involved that individual in the offense
The defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood
The offense involved the exploitation of children and/or vulnerable persons to assist in drug-related activity
The offense involved the exercise of control over the home of another person for drug-related activity
The offense exposed a drug user to the risk of serious harm over and above that expected by the user, for example, through the method of production or subsequent adulteration of the drug
The offense exposed those involved in drug dealing to the risk of serious harm, for example through the method of transporting drugs
The offense exposed third parties to the risk of serious harm, for example, through the location of the drug-related activity
The offense led to an especially harmful community impact
The offense involved the use of sophisticated methods or technologies in order to avoid or impede detection

Mitigating Factors:

The defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit the offense
The defendant received no monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances
The offense involved only drugs to which the defendant was addicted
The defendant's addiction contributed to the criminal behavior
The offense involved a mistaken belief by the defendant regarding the type of drug, taking into account the reasonableness of such belief in all the circumstances
The offense was an isolated incident
The offense was committed due to an unusual circumstance that is unlikely to happen again
The defendant has taken steps to address addiction or other offense-related behavior
The defendant’s age and/or lack of maturity, if it contributed to the commission of the offense
The defendant’s mental disorder or learning disability, if it contributed to the commission of the offense
The defendant’s vulnerability was exploited
The defendant exhibited prospects for work, training, or education while the offense was taking place
Upon arrest, the defendant cooperated with law enforcement

(d) Drug Harm Category Table

Category 1

The offense involves –

• 1 KG or more of Heroin;
• 5 KG or more of Cocaine;
• 280 G or more of Cocaine Base;
• 1 KG or more of 3 KG of PCP, or
      100 G or more of PCP (actual);
• 500 G or more of Methamphetamine, or
      50 G or more of Methamphetamine (actual), or
      50 G or more of 150 G of "Ice";
• 500 G or more of Amphetamine, or
      50 G or more of Amphetamine (actual);
• 10 G or more of LSD;
• 400 G or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
• 100 G or more of a Fentanyl Analogue;
• 1,000 KG or more of Marihuana;
• 200 KG or more of Hashish;
• 20 KG or more of Hashish Oil;
• 1,000,000 or more units of Ketamine;
• 1,000,000 or more units of Schedule I or II Depressants;
• 62,500 or more units of Flunitrazepam;
• 1,000 KG or more of Converted Drug Weight.

Category 2

The offense involves –

• At least 400 G but less than 1 KG of Heroin;
• At least 2 KG but less than 5 KG of Cocaine;
• At least 112 G but less than 280G of Cocaine Base;
• At least 400 G but less than 1 KG of PCP, or
       at least 40 G but less than 100 G of PCP (actual);
• At least 200 G but less than 500 G of Methamphetamine, or
       at least 20 G but less than 50 G of Methamphetamine (actual), or
       at least 20 G but less than 50 G of "Ice";
• At least 200 G but less than 500 G of Amphetamine, or
       at least 20 G but less than 50 G of Amphetamine (actual);
• At least 4 G but less than 10 G of LSD;
• At least 160 G but less than 400 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
• At least 40 G but less than 100 G of a Fentanyl Analogue;
• At least 400 KG but less than 1,000 KG of Marihuana;
• At least 80 KG but less than 200 KG of Hashish;
• At least 8 KG but less than 20 KG of Hashish Oil;
• At least 400,000 but less than 1,000,000 units of Ketamine;
• At least 400,000 but less than 1,000,000 units of Schedule I or II Depressants;
• At least 25,000 but less than 62,500 units of Flunitrazepam;
• At least 400 KG but less than 1,000 KG of Converted Drug Weight.

Category 3

Selling directly to users or supplying in a custodial institution, or

the offense involves –

• At least 100 G but less than 400 G of Heroin;
• At least 500 G but less than 2 KG of Cocaine;
• At least 28 G but less than 112 G of Cocaine Base;
• At least 100 G but less than 400 G of PCP, or
       at least 10 G but less than 40 G of PCP (actual);
• At least 50 G but less than 200 G of Methamphetamine, or
       at least 5 G but less than 20 G of Methamphetamine (actual), or
       at least 5 G but less than 20 G of "Ice";
• At least 50 G but less than 200 G of Amphetamine, or
       at least 5 G but less than 20 G of Amphetamine (actual);
• At least 1 G but less than 4 G of LSD;
• At least 40 G but less than 160 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
• At least 10 G but less than 40 G of a Fentanyl Analogue;
• At least 100 KG but less than 400 KG of Marihuana;
• At least 20 KG but less than 80 KG of Hashish;
• At least 2 KG but less than 8 KG of Hashish Oil;
• At least 100,000 but less than 400,000 units of Ketamine;
• At least 100,000 but less than 400,000 units of Schedule I or II Depressants;
• At least 6,250 but less than 25,000 units of Flunitrazepam;
• At least 100 KG but less than 400 KG of Converted Drug Weight.

Category 4

The offense involves –

• Less than 100 G of Heroin;
• Less than 500 G of Cocaine;
• Less than 28 G of Cocaine Base;
• Less than 100 G of PCP, or
       less than 10 G of PCP (actual);
• Less than 50 G of Methamphetamine, or
       less than 5 G of Methamphetamine (actual), or
       less than 5 G of "Ice";
• Less than 50 G of Amphetamine, or
       less than 5 G of Amphetamine (actual);
• Less than 1 G of LSD;
• Less than 40 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
• Less than 10 G of a Fentanyl Analogue;
• Less than 100 KG of Marihuana;
• Less than 20 KG of Hashish;
• Less than 2 KG of Hashish Oil;
• Less than 100,000 units of Ketamine;
• Less than 100,000 units of Schedule I or II Depressants;
• Less than 6,250 units of Flunitrazepam;
• Less than 100 KG of Converted Drug Weight.

Introduction

The federal sentencing guidelines have been subject to intense and relentless criticism since the day the first draft of them was made public. Among the guidelines, though, no single one has been more criticized than the guideline applicable to those convicted of federal drug trafficking offenses. The focus on the drug guideline has been so intense in part because drug trafficking offenses have consistently accounted for more than a quarter of the federal docket — and in some years approaching half of the docket — for the entire post-Sentencing Reform Act period.

In addition, the drug guideline, which the first Sentencing Commission tied to the mandatory minimum penalties enacted by Congress in 1986, recommends relatively severe imprisonment terms for most federal drug offenders. Average sentences for drug trafficking offenses are the highest among the “big four” guidelines that are used in the vast majority of federal sentencings each year (drugs, immigration, fraud, and firearms).

The federal prison population has grown from around 40,000 in 1985 before the development of the Guidelines and the enactment of the drug trafficking mandatory minimums to around 158,000 today (peaking at around 220,000 in 2013). Much of that increase can be attributed to post-1986 federal drug sentencing policy. Currently, forty-four percent of the federal prison population are drug offenders.

Critiques of Federal Drug Sentencing Policy

The most recent critiques of the drug guideline will appear in a forthcoming issue of the Federal Sentencing Reporter devoted to so-called “boat defendants.” These are people arrested at sea and typically transporting large quantities of cocaine, and sometimes other drugs, from South America headed to the United States and Europe. Professor Mark Osler of the University of St. Thomas School of Law (along with others in the FSR issue) articulates critiques made by many for the last 30 years: the federal drug guidelines inappropriately use the type of drug and the weight of the drugs involved in the offense as the primary determinants of the recommended sentence.

Osler, as many have done previously, finds the focus on drug type and weight unsatisfactory because the Guidelines’ sentencing algorithm for drug offenses fails to account for the very significant differences in culpability among offenders involved with the same drug type and weight. His argument is summed up in this passage from his upcoming article —

At sea, it is the poor fisherman hired to pilot the boat, and on land it is the mules who drive the trucks or the guy who watches over the narcotics as it sits in a garage. If I pay someone $400 to go pick up 10,000 fentanyl pills for me in Phoenix so I can sell them in Minneapolis for an $80,000 profit, we will both face about the same sentence, despite the fact that I am the one who knew how to set up the deal, how to transfer the money, how to distribute it here, and how to hire others involved and the other guy just knows how to drive a rented Toyota Camry to Arizona and back. The cost of weight as a false metric for culpability has been enormous: We have imprisoned thousands of the least culpable and most easily replaceable people in the narcotics trade for long terms, while doing almost nothing to actually inhibit the narcotics trade in a meaningful way.

I generally agree with Osler’s assessment — and that of many others before him — of the shortcomings of the drug trafficking guideline. The guideline relies too much on the type and weight of the drugs involved in the offense to determine the recommended sentence for drug offenders, and this reliance leads to unintended and inappropriate sentencing outcomes not infrequently. Further, and as importantly, the drug guideline is a prime example of “factor creep,” the phenomenon of an ever-growing number of aggravating and mitigating factors (mostly aggravating factors) added by Congress and the Commission to the Guidelines over time. Just compare the guideline as it is today — with nearly 20 added parts and subparts — with the much simpler guideline first implemented in 1987.

Previous Congressional and Commission Action

In the face of decades of criticism of drug statutes and guidelines, Congress and the Commission have indeed made some significant changes and improvements to federal drug sentencing policy. In 1994, in the much-criticized Clinton Crime Bill, Congress created the so-called “safety valve,” which allows sentencing courts to ignore any otherwise applicable statutory mandatory minimum and instead follow the Sentencing Guidelines for defendants convicted of certain nonviolent drug crimes who meet five specified criteria. The safety valve was later expanded in the FIRST STEP Act.

On federal cocaine sentencing policy, the Commission first issued a report in 1995, then amended the Guidelines to equalize the sentencing treatment of crack and powder cocaine, an amendment that was rejected by Congress before it could go into effect. The Commission made several subsequent recommendations to Congress for reform and after several years, reduced the guideline sentences for crack trafficking offenses by two offense levels across drug quantity levels. Ultimately, in 2010, President Obama signed into law the Fair Sentencing Act that reduced the statutory 100-to-1 quantity ratio to 18-to-1, and the Commission then implemented the statutory change into the Guidelines.

The Commission has also adjusted the overall Drug Quantity Table on several occasions to reduce the impact of drug type and weight. It reduced the maximum offense level that could be triggered by drug type and weight back in the 1990s. And it later reduced the offense levels associated with all drug quantity levels through the so-called drugs-minus-two amendment in 2013.

But the foundational structure of the drug guideline remains, with sentencing recommendations in most cases based primarily on drug type and drug weight. And the criticism continues as unintended results continue. The first Commission created the structure of the drug guideline to comply with — in a manner it thought was required by — the Anti-Drug Abuse Act of 1986. And subsequent Commissions, correctly I believe, have been reluctant to walk away completely from drug type and weight so long as Congress leaves in place a statutory federal drug sentencing policy based in significant part on type and weight.

The Commission exercises delegated congressional power and is ultimately answerable to Congress. The Commission is, of course, free to recommend to Congress changes to the drug trafficking statutes. But besides asking Congress in the 1990s to eliminate the mandatory minimums set out in those statutes, the Commission has not recommended a fundamental and detailed statutory rewrite of federal drug sentencing policy. And Congress has shown no inclination to change those criminal and sentencing statutes on its own. There remains significant support in Congress and the Executive Branch for a drug sentencing policy based in part on drug type and drug weight.

What Else Can Be Done

So does that mean there is nothing the Commission can do to improve federal drug sentencing policy. I don’t think so. The draft guideline above is an attempt at an improved drug guideline that I believe could be supported broadly in Congress, by the Judiciary, and by other criminal justice stakeholders. Moreover, it is the embodiment of a simplified guideline architecture that is more consistent with a post-Booker advisory guideline system and could be a model for further guideline simplification and reform.

Suggestions made by others to the Commission in recent years on how to change the drug guideline have been inadequate to the policy and political tasks. For example, the Federal Defender Sentencing Guidelines Committee, in its recent annual letter to the Commission, had this recommendation: “[t]he Commission should revisit and recalibrate the most commonly-applied guidelines — by lowering base offense levels, untethering offense levels from failed quantity-based proxies such as drug weight or loss amount.” As I indicated earlier, I’m sympathetic with the criticisms of the drug guideline. But simply lowering base offense or “untethering” quantity-based proxies is not an adequate solution. In earlier letters, the Defenders have suggested to focus more on culpability factors rather than drug type and weight. But no concrete proposal emerged and no serious conversation among the stakeholders, the Commission, and Congress ensued. The draft above is consistent, I believe, with the direction suggested by the Defenders.

Professor Osler, in his forthcoming article, made a different suggestion. He recommended that drug sentences be “calibrated to the amount of profit by [each] defendant” untethered from “the usual conspiracy rules, for which a defendant is responsible for whatever the conspiracy does in sentencing.” He believes profit is a good indicator of culpability for drug offenders.

The sensible way to assess relative culpability would be one that is deeply rooted in the economic supply-and-demand realities of drug trafficking. There, as in other types of business, those with unique abilities or characteristics — risk-taking, great intelligence, an understanding of costs and rewards, sheer charisma — are rewarded with the most money, while those with the most common talents (i.e., being able to lift things) receive the least. In other words, where labor supply is low (because of the necessary attributes), the price is high. That means that we can measure culpability by simply looking to the metrics the real world applies: how much money one makes. Those who take the most from an operation are generally more culpable than those who take the least.

While I admire the theoretical underpinnings of Professor Osler’s suggestion, the challenges of rigorously and consistently deciphering the profit associated with each and every individual drug trafficker are simply insurmountable. The proposal reminds me a bit of Professor Paul Robinson’s draft for the initial sentencing guidelines: mathematical and complex. Where Robinson’s draft would have required sentencing courts to account for "all of the injuries and harms, personal and societal, tangible and intangible, that are attributable, directly or indirectly, to the offender and could have been foreseen," United States Sentencing Commission, Proposed Sentencing Guidelines Manual (July 10, 1986), Osler’s proposal would require prosecutors — and ultimately sentencing courts — to account for all revenue and expenses associated with each individual drug conspirator. The proposal’s practical limitations make it very unlikely to garner sufficient support. And moreover, I think there are serious questions on whether profit is a reasonable proxy for culpability.

Starting the Conversation Towards a Better Drug Guideline

The draft guideline above is an attempt to reflect congressional drug sentencing policy choices and better account for culpability that is not tied to drug type and weight and comply with the requirements of the Sentencing Reform Act and simplify the guideline too. In putting it forward, the hope is to begin a conversation that may lead to some genuine improvement.

Much of the draft guideline flows from the drug guideline developed by the Sentencing Council for England and Wales. It takes the Council’s fundamental structural elements and adapts them to the requirements of the Sentencing Reform Act and other subsequent and relevant congressional enactments.

In 2005, I lived in Cambridge, England as part of the Atlantic Fellowship in Public Policy. I was based at the University of Cambridge’s Institute of Criminology which was being led by none other than Professor Michael Tonry, a sentencing policy giant who has spent most of his career at the University of Minnesota Law School. I met with the newly created Sentencing Council and its staff on several occasions. The Council is a sentencing commission by another name.

I have been taken by the simpler architecture embodied in many of the guidelines that the Council has developed. The Council’s work and the guidelines for England and Wales have subsequently been the basis for several other countries’ efforts at sentencing reform. And the American Bar Association Criminal Justice Section’s Task Force on Sentencing Standards is using these guidelines as a model as it reviews and edits its Standards.

The Draft Guideline

The draft guideline has many components, each of which ought to be – and may end up being – the subject of a separate essay. For now, a few words about its major components: 1. the Culpability/Harm Table; 2. the death and serious bodily injury resulting base offense levels; 3. the specific offense characteristics, and especially the cumulative aggravating and mitigating factor adjustment; and 4. the Drug Harm Category Table.

1. The Culpability/Harm Table

The Culpability/Harm Table is meant to simultaneously reflect congressional drug sentencing policy choices to use drug type and weight in the sentencing calculus and better account for culpability unrelated to drug type and weight. It is also meant to comply with the requirements of the Sentencing Reform Act. It is designed to utilize the unique position of the sentencing judge to grade the culpability of the defendant, which is a product of the defendant’s function in the drug trafficking manufacturing and distribution chain and the defendant’s role within any immediate criminal conspiracy. Thirty-five years of experience shows that determining culpability is not so easy by quantifiable algorithm but rather is the kind of fact- and case-specific determination that judges are best-positioned to make, and indeed can make consistently with appropriate guidance.

Using the Table, sentencing courts determine the offender’s culpability with reference to a non-exclusive list of factors along with the defendant’s role in the offense, and the harm involved in the offense with reference to the Drug Harm Category Table. The Culpability/Harm Table recalibrates the relationship between drug type and weight and culpability from existing federal drug sentencing policy. It does not remove drug type and weight from the calculus, it simply reduces their impact relative to the culpability determination. And the Table is structured so that the sentences for kingpins and others with high culpability are calibrated with the mandatory minimums, consistent with legislative intent.

I anticipate that the Sentencing Commission would publish on its website examples of offenders in the different culpability classifications with different combinations of function and role. These examples would help courts make the culpability determinations and avoid unwarranted disparities in the application of the guideline.

If the defendant is convicted of a statute carrying a mandatory minimum sentence and that minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence would become the guideline sentence.

2. The Death and Serious Bodily Injury Resulting Base Offense Levels

Congress has determined that when death or serious bodily injury results from the use of any substance distributed as part of the offense, a substantial imprisonment term should be imposed. But the actions of the courts, prosecutors, probation officers, and defenders demonstrate that the existing 20-year mandatory minimum, for example, is not appropriate for all cases where death results.

The draft guideline differentiates between those cases where the defendant distributed the substance to the affected person knowing or having reason to know that it contained a lethal dose and those cases where the death or serious bodily injury could not reasonably have been anticipated. In the former, the base offense level when death results is tied to that for second degree murder and the mandatory minimum. In the latter, the base offense level is closer to what might be appropriate for involuntary manslaughter committed with extreme recklessness. If the defendant is convicted of a statute carrying a mandatory minimum sentence and that minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence would be the guideline sentence.

3. The Specific Offense Characteristics and Especially the Cumulative Aggravating and Mitigating Factor

In the current drug guideline, there is a long list of aggravating factors and a smaller list of mitigating factors that have been added over time in response to congressional directives and the Commission’s own actions. This is factor creep. It is the result of a guideline architecture that was developed for a presumptive guideline system, one based on retributive principles where significant aggravating and mitigating offense-related factors are included in the applicable guideline as specific offense characteristics and assigned a specific offense level increase or decrease. The cumulative effect of these specific offense characteristics as they are currently structured — including exponential changes to the otherwise applicable recommended sentencing ranges — was never fully contemplated and often has a distorting impact on recommended sentences.

A better — and simpler — approach is provided in the draft, one more apt for a post-Booker advisory guideline system. It asks the sentencing court to consider all of the listed — and any other — offense-related aggravating and mitigating factors. After doing so, if the court finds that aggravating factors predominate, it will increase the defendant’s offense level by 2 levels. If it finds that mitigating factors predominate, it will decrease the offense level by 2 levels.

This guideline design would mark a new architectural foundation for the Guidelines, one that complies with the Sentencing Reform Act but that provides an alternative to assigning a particular offense level increase or decrease to each and every aggravating and mitigating factor.

4. The Drug Harm Category Table

This Table is derived from the existing Drug Quantity Table, which in turn is tied to the legislatively enacted drug amounts associated with different drug types. It respects congressional enactments and intent, yet in conjunction with the sentencing court’s culpability determination, recalibrates the relationship between drug quantity and culpability.

- - -

This draft is a work in progress. I hope it will spur a conversation that might lead to a better drug guideline.

Appendix A

I ran the drug guideline rewrite through Claude AI and asked it to identify the three most common ambiguities in it, fact patterns that reflect the ambiguities, and suggestions for clarifying language both ways.

Here was Claude's response:

Here are three fact patterns where ambiguities might arise, along with suggestions for clarifying language in both directions.
-Most common ambiguity: Determining culpability level for mid-level dealers
Fact pattern: A defendant is caught selling cocaine and has some influence over street-level dealers but also receives orders from higher-level suppliers.
Ambiguity: The defendant's role could fit aspects of both "Significant culpability" and "Lesser culpability" categories.
Clarifying language to include:
"A defendant who exercises any degree of control or influence over others in the distribution chain, regardless of their position relative to higher-level suppliers, should be considered to have at least Significant culpability."
Clarifying language to exclude:
"A defendant must have substantial control over multiple levels of the distribution chain to be considered above Lesser culpability."
-Second most common ambiguity: Assessing harm for direct-to-user sales
Fact pattern: A street-level dealer is caught selling a small amount of heroin directly to users, but the total amount sold over time is substantial.
Ambiguity: The guideline states that direct-to-user sales should be considered Category 3 harm, but it's unclear how to balance this with the quantity-based categories.
Clarifying language to include:
"When assessing harm for direct-to-user sales, the court should consider the total quantity sold over the course of the criminal activity, not just the amount seized at the time of arrest."
Clarifying language to exclude:
"For direct-to-user sales, the harm category should be based solely on the amount seized at the time of arrest, regardless of the total amount sold over time."
-Third most common ambiguity: Applying aggravating and mitigating factors
Fact pattern: A defendant is caught manufacturing methamphetamine in a home where children are present, but the defendant was coerced into the activity by threats from a drug cartel.
Ambiguity: It's unclear how to balance the aggravating factor of exposing minors to the offense with the mitigating factor of being motivated by threats.
Clarifying language to include:
"When both aggravating and mitigating factors are present, the court should weigh them equally, with factors related to harm to others given additional weight."
Clarifying language to exclude:
"In cases where both aggravating and mitigating factors are present, the court should prioritize mitigating factors related to the defendant's personal circumstances over aggravating factors related to the offense's impact on others."
These clarifications would help address potential ambiguities in applying the amended drug guideline to various real-world scenarios.

Appendix B

I also asked Claude AI for other suggestions to improve the guideline —

Here are some suggestions for improving the guideline:
1. Quantify culpability levels: Instead of relying solely on descriptive categories, introduce a point system for various factors that contribute to culpability. This would allow for more nuanced assessments and reduce ambiguity when a defendant falls between categories.
2. Expand the drug harm category table: Include more emerging drugs and analogs, especially synthetic opioids and new psychoactive substances. This would help courts deal with novel substances without relying as heavily on expert testimony.
3. Incorporate addiction considerations: Add a specific section addressing how a defendant's personal drug addiction should be factored into sentencing. This could include guidance on treatment-based alternatives to incarceration for certain offenders.
4. Clarify the role of drug purity: Provide more explicit instructions on how to adjust harm categories based on drug purity, especially for drugs like cocaine and heroin where purity can vary widely.
5. Address cybercrime aspects: Include specific guidance on how to assess culpability and harm for drug offenses conducted via the dark web or using cryptocurrencies.
6. Refine the mitigating factors: Provide more specific criteria for applying mitigating factors, such as defining what constitutes "minimal knowledge" or "isolated incident" in the context of drug offenses.
7. Update the quantity thresholds: Regularly review and adjust the quantity thresholds for each harm category to reflect current drug market trends and potencies.
8. Include environmental impact considerations: Expand on the environmental harm factors, providing more specific guidelines for assessing the ecological impact of drug production and disposal.
9. Address poly-drug offenses: Provide clearer instructions on how to calculate harm and culpability when multiple drug types are involved in a single offense.
10. Incorporate rehabilitative potential: Add guidance on how to factor in a defendant's potential for rehabilitation, including considerations like voluntary entry into treatment programs prior to arrest.
11. Clarify application of specific offense characteristics: Provide more detailed examples of how to apply the specific offense characteristics in (c), especially when multiple characteristics apply.
12. Address international aspects: Include guidance on how to assess culpability and harm for offenses that cross international borders or involve multiple jurisdictions.
These improvements would make the guideline more comprehensive, adaptable to evolving drug crime trends, and better equipped to handle the complexities of modern drug offenses.

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