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“The drug trafficking offense guideline was born broken”

Judge John Gleeson of the Eastern District of New York has written a scathing opinion criticizing the U.S. Sentencing Guidelines approach to drug trafficking offenses.  The Guidelines for heroin, cocaine and crack are, in short, unjustifiably high and “structurally flawed.”  Judge Gleeson explains: “The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.”  Although Judge Gleeson does not say so explicitly, his approach amounts to a “deconstruction” of the relevant Guideline — a judicial examination of how the Sentencing Commission arrived at the sentences set forth in the Guidelines Manual.  Deconstruction of sentencing Guidelines is an important tactic for defense lawyers: when we convince judges that a Guideline is based on false premises or were enacted without empirical support, we can often convince them that the relevant Guideline merits minimal weight in a particular case.  For a thoughtful commentary on the decision and to read it in full, see Prof. Doug Berman’s Sentencing Law and Policy Blog.

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