That the guidelines make noise of the purity of a purchased drug or even an artificially high quantity of the drug seems somewhat ridiculous. A drug dealer purchasing a large quantity of the drug because he got it at a steal does not, to me, logically connect to his culpability or moral depravity—at least not at a small scale. A sophisticated multinational cartel will not be haggling with the reverse-sting agent behind the local Walmart, but those agents are the far more serious and dangerous. Similarly I don't see the vision for the purity. Most street drug dealers, I imagine, are not seeking out the Walter Whites of the black market; the likely buy either from low-level, attenuated cartel affiliates or local production operations. That they happened to pick up some gourmet batch also fails to say anything about their mens rea.
These examples just point to the silliness of the guidelines writ large. These people, in both cases, are slinging drugs. Drugs that, presumably, contribute to self-destruction and harm towards family relationships. Their motives may be (in a classic 1L criminal law sense) "just," but the quality or quantity of the drug purchased for the price has nothing to do with that. If the government wants to imprison someone for pushing drugs, then the sentence should either be standardized for all but the most extreme cases or entirely up to the judgement of the court rendered based on the personal exposure to the defendant (to whatever degree that works or does not I make no comment).
Interesting article. Sad to learn that the US has a negative global reputation for something as domestic as federal sentencing.
Directing or organising buying and selling on a commercial scale
Substantial links to, and influence on, others in a chain
Close links to original source
Expectation of substantial financial or other advantage
Uses business as cover
Abuses a position of trust or responsibility
Significant role:
Operational or management function within a chain
Involves 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 offender’s own habit), whether or not operating alone
Some awareness and understanding of scale of operation
Lesser role:
Performs a limited function under direction
Engaged by pressure, coercion, intimidation, grooming and/ or control
Involvement through naivety, immaturity or exploitation
No influence on those above in a chain
Very little, if any, awareness or understanding of the scale of operation
Expectation of limited, if any, financial or other advantage (including meeting the offender’s own habit)
I gave that page a read. Yes, I greatly prefer the role-based analysis as a start. It seems intuitive. I don't know enough about drugs to comment on the quantity-based harm categories, but I feel a reflexive skepticism. It reminds me of "LSD in the orange juice" of Chapman (U.S. 1991). But perhaps they have a better grip on that, too.
But I reflexively support the role-based culpability. I would be interested in what critics would have to say about it, but to me it appears to employ what most people appear to feel: that drug bosses should face more time than people availing themselves of the drug industry to feed their families. If it were me, I would put my whole weight behind the life sentence for the sophisticated actors bringing deadly bioweapons into our country and poisoning our youth. These people can be deterred (and I would be open to something more severe than life for them, perhaps). But for the economically depressed (but nevertheless morally culpable) street vendors, I'm optimistic that swift sentencing would have a deterring effect.
I agree. Where we part company is that I don’t believe that the USSC’s latest changes leave federal judges “unguided” or meaningfully reduce transparency. Also, can we still consider our current federal sentencing scheme a “reform” movement?
I find very odd your take that the “worst” part of the “new guideline architecture” is that “the sentencing court is on its own to determine the appropriate sentence….” Judges in this country have been determining sentences “on their own” for over two centuries and are quite capable with or without USSC “guidance.” Whether these sentences are appropriate or not of course is in the eye of the beholder.
Thank you so much for reading the essay and for your comment. Yes, you're right that judges have largely been on their own in meting out criminal sentences in U.S. courts over the last two centuries. The sentencing reform movement, in which I still believe, is based on the premise that if judges are guided through the sentencing process to transparently consider articulated aggravating and mitigating factors in a thoughtful way that the sentencing process will be fairer to defendants, victims, and the general public, the sentences meted out will be more consistent and avoid unwarranted sentencing disparities, including unwarranted racial and ethnic disparities, and the actual sentences imposed will be fairer, more rational, and not greater than necessary to achieve the purposes of punishment. I still believe in these goals and the movement to further them.
That the guidelines make noise of the purity of a purchased drug or even an artificially high quantity of the drug seems somewhat ridiculous. A drug dealer purchasing a large quantity of the drug because he got it at a steal does not, to me, logically connect to his culpability or moral depravity—at least not at a small scale. A sophisticated multinational cartel will not be haggling with the reverse-sting agent behind the local Walmart, but those agents are the far more serious and dangerous. Similarly I don't see the vision for the purity. Most street drug dealers, I imagine, are not seeking out the Walter Whites of the black market; the likely buy either from low-level, attenuated cartel affiliates or local production operations. That they happened to pick up some gourmet batch also fails to say anything about their mens rea.
These examples just point to the silliness of the guidelines writ large. These people, in both cases, are slinging drugs. Drugs that, presumably, contribute to self-destruction and harm towards family relationships. Their motives may be (in a classic 1L criminal law sense) "just," but the quality or quantity of the drug purchased for the price has nothing to do with that. If the government wants to imprison someone for pushing drugs, then the sentence should either be standardized for all but the most extreme cases or entirely up to the judgement of the court rendered based on the personal exposure to the defendant (to whatever degree that works or does not I make no comment).
Interesting article. Sad to learn that the US has a negative global reputation for something as domestic as federal sentencing.
Thank you, Seth, for your comments. I really appreciate you reading the essay and sharing your thoughts. If you are so inclined, take a look at the drug guideline used in England in Wales and let us know if you think that's better than what we have in the federal system. https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/supplying-or-offering-to-supply-a-controlled-drug-possession-of-a-controlled-drug-with-intent-to-supply-it-to-another/. The England and Wales guideline starts off with a culpability determination (leading, significant, or lesser role):
Leading role:
Directing or organising buying and selling on a commercial scale
Substantial links to, and influence on, others in a chain
Close links to original source
Expectation of substantial financial or other advantage
Uses business as cover
Abuses a position of trust or responsibility
Significant role:
Operational or management function within a chain
Involves 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 offender’s own habit), whether or not operating alone
Some awareness and understanding of scale of operation
Lesser role:
Performs a limited function under direction
Engaged by pressure, coercion, intimidation, grooming and/ or control
Involvement through naivety, immaturity or exploitation
No influence on those above in a chain
Very little, if any, awareness or understanding of the scale of operation
Expectation of limited, if any, financial or other advantage (including meeting the offender’s own habit)
Jonathan —
I gave that page a read. Yes, I greatly prefer the role-based analysis as a start. It seems intuitive. I don't know enough about drugs to comment on the quantity-based harm categories, but I feel a reflexive skepticism. It reminds me of "LSD in the orange juice" of Chapman (U.S. 1991). But perhaps they have a better grip on that, too.
But I reflexively support the role-based culpability. I would be interested in what critics would have to say about it, but to me it appears to employ what most people appear to feel: that drug bosses should face more time than people availing themselves of the drug industry to feed their families. If it were me, I would put my whole weight behind the life sentence for the sophisticated actors bringing deadly bioweapons into our country and poisoning our youth. These people can be deterred (and I would be open to something more severe than life for them, perhaps). But for the economically depressed (but nevertheless morally culpable) street vendors, I'm optimistic that swift sentencing would have a deterring effect.
I agree. Where we part company is that I don’t believe that the USSC’s latest changes leave federal judges “unguided” or meaningfully reduce transparency. Also, can we still consider our current federal sentencing scheme a “reform” movement?
Points taken. Again, thank you for your comments and for reading our Substack.
I find very odd your take that the “worst” part of the “new guideline architecture” is that “the sentencing court is on its own to determine the appropriate sentence….” Judges in this country have been determining sentences “on their own” for over two centuries and are quite capable with or without USSC “guidance.” Whether these sentences are appropriate or not of course is in the eye of the beholder.
Thank you so much for reading the essay and for your comment. Yes, you're right that judges have largely been on their own in meting out criminal sentences in U.S. courts over the last two centuries. The sentencing reform movement, in which I still believe, is based on the premise that if judges are guided through the sentencing process to transparently consider articulated aggravating and mitigating factors in a thoughtful way that the sentencing process will be fairer to defendants, victims, and the general public, the sentences meted out will be more consistent and avoid unwarranted sentencing disparities, including unwarranted racial and ethnic disparities, and the actual sentences imposed will be fairer, more rational, and not greater than necessary to achieve the purposes of punishment. I still believe in these goals and the movement to further them.