Not long ago, a 21-year-old from California, whom we'll call Joe Deadhead, attended a concert in Buffalo. Outside the concert hall, he sold 199 hits of LSD to a friend at 65 cents each, for a total of about $130. Later on, undercover DEA agents busted Joe's friend, who agreed to cooperate and fingered Joe. Posing as buyers, the agents asked Joe if he could sell them some acid. He declined, but during the conversation he admitted selling LSD to his friend.
Now Joe is really screwed. By the standards of the Drug Enforcement Administration, 199 doses is not a lot of LSD. But under current federal law, Joe's sentence will hinge not on the (negligible) weight of the drug but on the weight of the "carrier medium"—in this case, paper impregnated with LSD. The paper weighed a little more than a gram, so the law treats Joe as if he had sold a gram of LSD, or 20,000 50-microgram doses. Under the Anti-Drug Abuse Act of 1986, that means a mandatory minimum sentence of five years. Had Joe been charged under New York state law, which does not count paper as LSD, his crime would have been a Class A misdemeanor, carrying a punishment of less than a year in county jail.
The way that federal law treats LSD doesn't make much sense. Under federal sentencing guidelines, selling 100 doses of LSD in pure form triggers a minimum sentence of less than a year, but selling the same amount on paper will get you a sentence of at least two years, three months. And if you were old-fashioned enough to drop your acid onto sugar cubes, you will end up behind bars for no less than 15 years, eight months. "All this seems crazy," wrote Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, in a 1990 dissent. "To base punishment on the weight of the carrier medium makes about as much sense as basing punishment on the weight of the defendant." The consequences of this approach, Justice John Paul Stevens wrote in another dissent in the same case when it reached the U.S. Supreme Court in 1991, "are so bizarre that I cannot believe they were intended by Congress."
But the majority in Chapman v. United States gave Congress more credit—or less, depending upon how you look at it. The Court ruled that when Congress said a drug offender's punishment should be based on the weight of the "mixture or substance containing a detectable amount" of the drug, it meant to include paper, sugar cubes, and gelatin capsules—even, in the extreme case suggested by Posner, a pint of orange juice spiked with a dose of LSD.
Last spring the U.S. Sentencing Commission, the independent agency charged with filling in the details of federal criminal penalties, decided that something had to be done about the unfair results of this interpretation. Small-time LSD dealers like Joe Deadhead were going to prison for five- and 10-year stretches without parole. But the Sentencing Commission was still bound by the Supreme Court's ruling in Chapman, so it couldn't simply tell judges to exclude carrier weight when calculating sentences.
Instead, the commission came up with a strange compromise: First, count the number of doses, which are usually indicated by lines or perforations on LSD paper; then, multiply by 0.4 milligram to get the weight for sentencing purposes. This scheme would dramatically cut the sentences in many LSD cases. Joe Deadhead, for example, would face a minimum of one year, three months instead of five years. Still, 0.4 milligram, somewhere between four and eight times a typical dose of LSD, is a fictitious number. The commission explains that the standard includes "some weight attributable to the carrier medium" to avoid running afoul of Chapman.
Even so, the proposed change may not stand. The Sentencing Commission approved the amendment on May 4 and sent it to Congress, which has until November 1 to respond. If Congress does not act, the amendment automatically goes into effect. But Buffalo attorney Herb Greenman, who is representing Joe Deadhead, says it's not clear that the change will help defendants like his client. The five-year minimum sentence for a gram or more of a mixture or substance containing a detectable amount of LSD is set by statute, not by the commission. And at the end of its commentary on the LSD amendment, the commission writes: "This approach does not override the definition of mixture or substance for purposes of applying any mandatory minimum sentence." Says Greenman, "That little sentence, for my case, could have a big impact."
The bizarre effects of linking punishment to an unrealistic definition of drug weight are most dramatic in the case of LSD, a potent drug that weighs very little by itself. And they have become most obvious in the last few years, with the advent of mandatory minimum sentences at the federal level. But the consequences extend to other drugs as well, and the problem goes back decades. It can be explained by a combination of ignorance and anti-drug zeal.
"You're dealing with an almost unfathomable level of ignorance about drugs on the part of the policy makers," says Eric Sterling, president of the Criminal Justice Policy Foundation and a former assistant counsel to the House Subcommittee on Crime. 'These are men and women who know nothing about drugs…at the same time that they are expected to be experts. Therefore they easily convince themselves that they are knowledgeable: 'Oh yes, I know about this; I had a half-hour briefing by the DEA.' It's really a case of the blind leading the blind."
Furthermore, drug warriors are less interested in setting up neat, rational systems of punishment than in coming down hard on offenders. Heavier punishments are almost always better, and lighter punishments are almost never an improvement, even if they make the law more consistent. In this light, drug weight is not a physical measurement at all; it is simply an excuse to put people in prison for longer periods of time.
Robert Sager, former director of the DEA's Western Regional Laboratory in San Francisco, says he and other members of the agency's scientific staff were baffled by their superiors' determination to base sentences on gross weight rather than the number of doses, which had been federal practice until 1986. "We tried our best to get that thing changed," he says. "From our perspective, it was totally unreasonable. But we had a bunch of guys who were real hard asses. They didn't want to take a reasonable approach."
The DEA may have been taking a cue from New York's drug laws. Since at least 1969, punishment for some drug offenses in New York has been based on the aggregate weight of "preparations, compounds, mixtures, or substances" containing illegal chemicals. In 1974 Alejandro Daneff, who had been convicted of cocaine possession, challenged this statutory scheme in federal court, arguing that it violated the Constitution's due-process and equal-protection guarantees. Among other anomalies, he noted that someone caught with 54 grains of pure cocaine would face a misdemeanor charge, while someone who had the same amount of pure cocaine mixed with 16 ounces of milk sugar would be treated as a Class A felon.
The U.S. Court of Appeals for the Second Circuit found that New York's treatment of drug weight had some rational basis, since cocaine and heroin are commonly sold in diluted form. Moreover, it said, "the State cannot be expected to make gradations and differentiations and draw distinctions so fine as to treat all law violators with the precision of a computer." Although the court found that Daneff's sentence was constitutional, it acknowledged that the law "could cause some rather remarkably unjust results," especially in light of the harsh mandatory sentences that the New York legislature had adopted in 1973. Selling a single liquid dose of methadone, for instance, would trigger a mandatory life sentence.
That example turned out to be prescient. In 1975 the New York Supreme Court found that the law's treatment of methadone violated the Equal Protection Clause. The New York legislature responded by promptly changing the basis for punishment of methadone offenses to pure weight (which is also the standard that the state uses for LSD).
New York's experience with methadone offers some hope for reform of the federal sentencing scheme. Prospects seem especially bright in the case of LSD, since it appears that Congress really did not know what it was doing, despite what the Supreme Court says. "I don't think people appreciate the extraordinary haste with which these provisions were developed," says Sterling, who worked for the House Subcommittee on Crime when it dealt with the Anti-Drug Abuse Act of 1986. "Congress was oblivious to the [carrier/drug] distinction. It had no intent one way or another. It simply didn't consider what the implications were." Both Sen. Joseph Biden (D-Del.) and Sen. Edward Kennedy (D-Mass.) have proposed amendments to exclude carrier weight from consideration in LSD cases.
But Julie Stewart, president of Families Against Mandatory Minimums, says the Sentencing Commission's proposed LSD amendment will probably take the pressure off Congress. Especially if the change is retroactive, the families of LSD defendants will be less noisy, and judges will find the sentences they're forced to impose less disturbing.
Stewart is more optimistic about the possibility of a legislative solution for crack offenders. Federal law treats crack cocaine as if it were 100 times worse than the powdered form of the drug, cocaine hydrochloride. Thus 500 grams of crack triggers the same penalty as 50 kilograms of cocaine hydrochloride. A first-time offender with 20 grams of cocaine hydrochloride faces a minimum sentence of 10 months, while a first-time offender with 20 grams of crack faces a minimum of six years, six months.
For defendants with previous drug convictions, sentences quickly escalate. Cordell Spencer had been convicted of three small-time drug offenses before his arrest in Washington, D.C., last year for possession of 6.69 grams of crack and 0.87 gram of heroin. Consequently, he faced a minimum sentence of 30 years. In April U.S. District Judge Harold Greene refused to impose the sentence. Although the U.S. Supreme Court has held that judges should defer to the legislature even when sentences seem grossly disproportionate, Greene noted that Spencer's punishment had actually been dictated by the Sentencing Commission, which he said deserves less deference. He ruled that a 30-year sentence for Spencer would violate his right to due process as well as the constitutional prohibition of cruel and unusual punishment.
The draconian penalties for crack offenses cannot be justified on pharmacological grounds. The active ingredient in both the snorted and smoked forms of cocaine is exactly the same, and the powder can be readily converted into crack. "The 100-to-1 number is not one that's based on any kind of science," Sterling says. "It's a political assessment based on hysteria."
The disparity is all the more troubling because more than 90 percent of federal crack defendants are black. The appearance of racism makes this a potentially powerful issue. Joseph Lowery, head of the Southern Christian Leadership Conference, has expressed concern about crack sentences, and FAMM is trying to persuade the Congressional Black Caucus to tackle the problem. "I think there's a good chance that we'll see movement on that," says Stewart. "It's a politically correct issue."
The issue of marijuana weight is not so politically correct, although the drug is perceived to be much less hazardous than crack. While LSD sentences can be explained by an oversight and crack sentences are the product of a widely believed myth, marijuana sentences are the result of a transparent fiction. Julie Stewart's brother Jeff is serving a five-year mandatory minimum sentence for growing 375 marijuana plants with three friends. It's the same sentence he would have faced if he had been caught with 375 kilograms (825 pounds) of pot. That's because the federal sentencing guidelines instruct courts to treat a marijuana plant as equivalent to a kilogram of pot in cases involving 50 or more plants. If fewer than 50 plants are involved, each plant counts as 100 grams.
Leaving aside the remarkable assumption that the per-plant yield increases tenfold when you pass the magic 50-plant mark, neither of these figures is accurate. First of all, it's misleading to measure yields by the number of plants. Ed Rosenthal, a marijuana cultivation expert who testifies frequently in criminal cases, says the relevant factor is the size of the garden. "You don't say to a farmer, 'How many tomato plants did you grow?' " he notes. "You say, 'How many acres?'" In a four-foot-by-four-foot closet, for example, you could grow 32 plants (two per square foot) or 64 plants (four per square foot). The yield would be about the same, but you would fill the garden and harvest pot sooner with more plants.
Rosenthal says an indoor plant typically yields less than an ounce (28.35 grams) of pot, while an outdoor plant typically yields two to three ounces (56.7 to 85 grams). The notion that the average plant would yield anything like a kilogram (2.2 pounds) is without foundation. "It's totally arbitrary," Rosenthal says. Yet the federal figure has set a new standard for what cops can get away with when testifying in state marijuana cases. "They'll say, 'The federal government claims that each plant weighs a kilogram, but I think they only weigh a pound,'" he says. "So they sound reasonable."
Jacob Sullum is managing editor of REASON.