Pubdate: Mon, 05 May 2014
Source: New York Times (NY)
Copyright: 2014 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Mark Osler
Note: Mark Osler is a former federal prosecutor and a professor of 
law at the University of St. Thomas in Minnesota.

WE NEED AL CAPONE DRUG LAWS

EDINA, Minn. - AFTER a ruinous 30-year experiment in harsh sentences 
for narcotics trafficking resulting in mass incarceration, policy 
makers are having second thoughts. Many states, including Texas, have 
reformed their laws to shorten sentences. Congress is giving serious 
consideration to the Smarter Sentencing Act, which would do the same. 
The United States Sentencing Commission has just adopted a proposal 
to revise federal guidelines.

And most recently, Attorney General Eric H. Holder Jr. announced that 
President Obama intends to use his executive pardon power to release 
hundreds or even thousands of federal prisoners with narcotics 
convictions (I am on a committee to train lawyers for the project). 
Something like that hasn't happened since President John F. Kennedy 
granted clemency to more than 200 prisoners convicted of drug crimes.

Unfortunately, none of this addresses a very basic underlying 
problem: We continue to use the weight of narcotics as a proxy for 
the culpability of an individual defendant, despite this policy's 
utter failure. If a kingpin imports 15 kilograms of cocaine into the 
country and pays a trucker $400 to carry it, they both face the same 
potential sentence. That's because the laws peg minimum and maximum 
sentences to the weight of the drugs at issue rather than to the 
actual role and responsibility of the defendant. It's a lousy system, 
and one that has produced unjust sentences for too many low-level 
offenders, created racial disparities and crowded our prisons.

We should have learned our lesson about this from Al Capone, who 
thrived during a previous era of prohibition and violence. He didn't 
drive a beer truck or stand guard over the whiskey, and that made him 
hard to prosecute. Yet we haven't changed the structure of the laws 
even now to properly prioritize the incarceration of those most 
responsible for drug trafficking. Instead, weight-based statutes and 
sentencing guidelines allow law enforcement to arrest mules and 
street dealers and claim they are kingpins.

Some laws create remarkably low thresholds for the highest penalties. 
For example, my home state of Minnesota categorizes someone who sells 
just 10 grams of powder cocaine (the equivalent of 10 sugar packets) 
as guilty of a first-degree controlled-substance crime - the most 
serious of five felony categories. There is no real differentiation 
between the most culpable wholesaler and an occasional street dealer.

The problem with recent legal reforms is that they don't dispose of 
this rotten infrastructure. In 2010, Congress passed the Fair 
Sentencing Act, which changed the ratio between crack and powder 
cocaine for sentencing purposes from 100-to-1 (meaning the same 
sentence applied to 100 grams of powder cocaine and to 1 gram of 
crack) to 18-to-1.

What the Fair Sentencing Act didn't do is change the basic 
weight-centric focus that has filled our prisons with narcotics 
convicts. There were 4,749 such prisoners serving federal time in 
1980, before the harshest weight-based standards were implemented. As 
of 2013, that number was 100,026. As for the drugs themselves, 
they're still here.

The law compounds this problem by considering all members of a 
supposed conspiracy to be equally responsible. Imagine a group of 
four people who agree to buy and distribute methamphetamine pills 
from Mexico. The leader knows how to get the methamphetamine 
wholesale, and has the capital to buy it. He arranges with one friend 
to smuggle it into the country, and two others to sell it at a 
profit. The leader will get 80 percent of the profit, the smuggler 
will get 10 percent and each seller will get 5 percent. If they are 
caught, it is likely they will all face the same sentence - despite 
their very different roles.

A better measure of culpability would be the amount of profit that 
any individual took from the operation of a narcotics ring. Because 
narcotics conspiracies are nothing more or less than a business, they 
operate like any other business. The people who have the most 
important skills, capital at risk or entrepreneurial abilities take 
the most money. Statutes and guidelines should be rewritten so that 
profit thresholds replace narcotic weight thresholds. Only then will 
mules and street sellers properly face much shorter sentences than 
real kingpins.

This would, of course, create a new challenge for prosecutors and 
investigators, who would have to prove the amount of profit made by 
an individual defendant. It wouldn't be as easy as snatching up mules 
and street dealers. But then "easy" and "justice" rarely rest 
comfortably with each other.
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MAP posted-by: Jay Bergstrom