Last week U.S. District Judge William Pauley III sentenced Sean McCarthy to 26 months in prison for conspiracy to possess and distribute MDMA (Ecstasy), less than half the minimum term recommended by federal sentencing guidelines. According to the ACLU, Pauley's decision is the first time a federal judge has rejected the U.S. Sentencing Commission's 2001 determination that MDMA should be treated as 500 times worse than marijuana and more than twice as bad as cocaine. "We commend Judge Pauley for recognizing that the 10-year-old sentencing guideline for Ecstasy is based on flawed assumptions and repudiated science," says Scott Michelman, an attorney with the ACLU's Criminal Law Reform Project. "Unnecessarily punitive drug sentencing guidelines play a major role in exacerbating our nation's costly problem of overincarceration, and we urge the U.S. Sentencing Commission to undertake a thorough and scientifically grounded re-evaluation of all drug guidelines."
Under the 2005 Supreme Court ruling in U.S. v. Booker, sentencing guidelines are no longer mandatory, but judges still have to explain any deviations, which are subject to review. In a May 19 memorandum (PDF) made public last Friday, Pauley, a federal judge in New York City, notes that one gram of MDMA was treated as equivalent to 35 grams of marijuana (meaning that one gram of MDMA triggered the same sentence as 35 grams of marijuana) until Congress passed the Ecstasy Anti-Proliferation Act of 2000*, which instructed the commission to review and increase MDMA penalties. In 2001 the commission settled on a new "marijuana equivalency" of 500 grams for MDMA, compared to 200 for cocaine and 1,000 for heroin. Based on evidence presented by the ACLU and the Multidisciplinary Association for Psychedelic Studies, Pauley concludes that one of the commission's justifications for treating MDMA more severely than cocaine—that "MDMA acts as both a stimulant and a hallucinogen"—was "without factual support and largely irrelevant." Furthermore, he says, "the Commission's analysis focused on the few ways in which MDMA is more harmful than cocaine, while disregarding several significant factors suggesting that it is in fact less harmful." Such "opportunistic rummaging" through the evidence, he says, is not a sound basis for sentencing policy. Pauley instead picks a marijuana equivalency of 200, the same as cocaine's.
This new ratio yields a much shorter sentence for McCarthy: a bit more than two years rather than five to seven. Since I generally support anything that reduces the punishment for behavior that should not be a crime to begin with, I welcome that outcome, just as I welcomed the shrinking of the sentencing gap between crack and cocaine powder, even though eliminating the gap would have been better (and repealing all penalties for consensual transactions between adults would have been better still). But that does not mean Pauley's number is more "scientifically grounded" than the commission's, whether before or after 2001, when the offense of selling MDMA to eager buyers suddenly became 14 times as reprehensible. Rating the badness of drugs is a largely subjective process, especially when it's tied to criminal penalties. To Pauley's mind, for instance, the violence associated with the cocaine trade, though almost entirely a product of prohibition, counts against that drug, while the fact that MDMA users are relatively young (compared to pot smokers?) justifies making penalties for selling it more severe than they would otherwise be.
And what about heroin? Is it really five times worse than cocaine? Not in terms of physical effects (assuming a reliable supply, sanitary injection practices, and no mixing with other depressants). Explaining why heroin should be treated more severely than MDMA, the sentencing commission cited prohibition-driven factors such as overdoses, the spread of disease through needle sharing, and potentially violent thefts committed to support artificially expensive habits. It also noted that "there are more heroin cases in the federal system than MDMA cases." What does that have to do with the punishment deserved by heroin or MDMA offenders? While Judge Pauley deserves credit for challenging the unfounded decisions reached by the sentencing commission in response to mindless congressional dictates, we should not pretend that our system of arbitrary pharmacological distinctions will ever be rational, scientific, or just.
*Correction: Thanks to a vigilant reader, I have reworded this sentence to clarify that the Ecstasy Anti-Proliferation Act was approved in 2000, while the sentencing commission issued its revised guidelines in 2001.
[via the Drug War Chronicle]