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Deconstructing the Meth Guidelines

Deconstructing the Meth Guidelines . Amy Baron-Evans Sentencing Resource Counsel Federal Public and Community Defenders. AUSA Trying to Justify Meth Guidelines.

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Deconstructing the Meth Guidelines

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  1. Deconstructing the Meth Guidelines Amy Baron-Evans Sentencing Resource Counsel Federal Public and Community Defenders

  2. AUSA Trying to Justify Meth Guidelines • AUSA: But the Sentencing Commission has evolved its calculation of the guidelines based upon the evolution of whatever information was available to them. • THE COURT: Which may or may not be politics. • AUSA: Right, sir. . . . I don't know that it has any scientific basis. All I know, Your Honor, it's been looked at over time and has changed and evolved, which would imply that there has been -- it could have been political, but it would certainly imply that somebody has looked at something . . . Sentencing Transcript, US v. Santillanes, No. 07-619 (D. NM, Sept. 19, 2009)

  3. Example: Meth Courier Humanize/Individualize: • Courier caught on bus with 400 grams mixture • Drug-addicted mother when conceived • Slow in school • Brothers got him into it, became an addict • Pled to > 50 g., 21 USC 841(b)(1)(B) • Turns out to be 150 grams actual • 1 CH point for minor drug trafficking for which he received no jail time

  4. Purposes • Retribution? • No violence, weapons, injury; low-level role; instant and prior offenses the result of disadvantaged upbringing and addiction • General Deterrence? • “Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else.” USSCFifteen Year Review at 134. • Protect Public from Further Crimes? • No violence in history • Drug treatment under supervision more effective at reducing recidivism than drug treatment in prison. • Rehabilitation? Needs: • Drug treatment, education, job training

  5. Purpose-Driven Sentence? • It’s not a violent or otherwise serious offense. See 28 USC 994(j). • Treatment, education, job training would protect the public better than prison. • Prison is not rehabilitative. See 28 USC 994(k). • Why not probation?

  6. Congress made probation “available” if: • the stat max is less than 25 years, • probation is not expressly precluded, and • D is not sentenced at the same time to prison for another offense that is not a petty offense. See 18 USC 3559(a), 3561(a). • Can’t get straight probation because stat max is more than 25 years. • Can get split sentence with as little as 1 day in jail • Need safety valve to avoid MM

  7. Calculate the guideline range • 400 grams mix = level 30 – 3 for AOR = 27 = 70-87 months • 150 grams actual = level 34 – 3 for AOR = 31 = 108-135 months • Can’t get role adjustment because no other known “participants”

  8. Deconstruct Meth Guidelines • Go to Table of Congressional Directives, http://www.fd.org/pdf_lib/SRC_Directives_Table_Nov_2008.pdf • search for meth • Or use Meth Amendment History

  9. Deconstruct Meth Guideline • 1987 – not in guidelines • 1989 – added per ADAA of 1988, 10:1 mix to actual, whichever greater, copied and extrapolated from MM levels • 11/1/91 – Congress said increase by 2 levels for “smokable crystal” (ICE) • USSC made both ICE and actual (which is not “smokable crystal”) 4-8 levels higher than mix

  10. 1996 Congress said review and amend GLs to increase penalties, didn’t say how • 11/1/97, Amend. 555 • USSC cut quantity in half for mix, thus un-linking GLs from statutory quantities to make GLs much more harsh than statute • did nothing with actual or ICE • 1998 – Following USSC’s lead, Congress cut quantities of both mix and substance in half to trigger Mand Mins, didn’t tell USSC to do anything.

  11. 11/1/2000 – USSC “conformed” meth actual to new Mand Mins. Amend. 594. • Why? • “un-linking the Drug Quantity Table from the mandatory minimum quantities established by Congress in a manner that reduces sentences would vary from past practice of the Commission and may prove politically unwise.” USSC, Methamphetamine - Final Report of the Methamphetamine Policy Team, at 18 (Nov. 1999), http://www.ussc.gov/publicat/methreport.PDF.

  12. NEVER ANY EMPIRICAL RESEARCH • Might say actual is more serious because more powerful. • But no empirical research establishes that 38 more months is necessary to satisfy sentencing purposes. • Especially for a courier who doesn’t know if it’s 10% or 100% pure • No other drug is punished more severely based on purity

  13. “I find that there is no empirical data or study to suggest that actual purity should be punished more severely by an arbitrary increase of the four levels in this case or at the higher level. It seems to be black box science, as best I can determine. I probably would not allow it under Daubert, based on what I know at present. It seems to be contrary to any empirical evidence, and really undermines Section 3553(a), as it does create an unwarranted disparity. It seems to me that this is not even a rough approximation to comply with 3553, and is not really based on any consultation or criminal justice goals or data.” Santillanes on remand, https://ecf.nmd.uscourts.gov/doc1/12111917143

  14. Reduce to meth mix level 27 = 70-87 months Still too high! Take 2 more levels off: • USSC admits it set all drug GLs 2 levels above that required to include the MM penalties at the two statutory quantity levels. USSG, App. C, Amend. 706, Reason for Amendment (Nov. 1, 2007). • Level 25 in CHC I = 57-71 months Still too high!

  15. Deconstruct the GL for Meth Mix • NO Drug GL Based on Past Practice or Empirical Research • Kimbrough at 567; Gall at 594 n.2 • Congress did not require drug guidelines to be calibrated to MMs • Original USSC just did it, did not explain why. Now says wanted to avoid “cliffs.” • Avoiding “cliffs” has nothing to do with sentencing purposes.

  16. Empirical research shows • Quantity is a poor proxy for offense seriousness. • USSC Fifteen Year Review at 47-55 • Eric L. Sevigny, Excessive Uniformity in Federal Drug Sentencing, 25 J. Quant. Criminol. 155, 171 (2009) • Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 Am. Crim. L. Rev. 833, 851-73 (1992) • United States v. Cabrera, 567 F.Supp.2d 271 (D. Mass. 2008).

  17. For non-violent drug offenders with little criminal history, a short prison sentence will deter as well as a long one. • See U.S. DOJ, An Analysis of Non-Violent Drug Offenders With Minimal Criminal Histories, Executive Summary (Feb. 4, 1994). • http://fd.org/pdf_lib/1994%20DoJ%20study%20part%201.pdf • http://fd.org/pdf_lib/1994%20DoJ%20study%20part%202.pdf • Prison sentences for low-risk drug offenders can increase recidivism. • See Miles D. Harar, Do Guideline Sentences for Low-Risk Drug Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22 (1994).

  18. Note percent receiving prison

  19. Objective Basis for Below-GL sentence Look to past practice for cocaine: Level 20 for 150 g. cocaine (pure weight) • 2 for role • 2 for being a drug user • 7 for pleading guilty = level 9 = 4-10 months average time served, and another 10% got probation Supplementary Report at 32, 35, 36, 38. He’s already served 4 months.

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