Drug Watch International

      The purpose of mandatory minimum sentences is to prevent the judicial trivialization of serious drug crimes.  They do that well, to which some protest. Because the federal sentencing system is the model most often cited, it will be used for illustration throughout the following discussion.

      Before the advent of mandatory minimum sentences in serious drug cases, federal judges  had unbridled discretion to impose whatever sentences they deemed appropriate, in their personal view, up to the statutory maximum.  Because individual judges differ widely in their personal views about crime and sentencing, the sentences they imposed for similar offenses by similar defendants varied widely.  What some judges treated as serious offenses, and punished accordingly, others minimized with much more lenient sentences.

      Ironically, more lenient sentences became  particularly prevalent in areas with high volumes of major drug crime, such as large metropolitan and drug importation centers.  Perhaps the sheer volume of cases in such areas led to a certain degree of desensitization.  When serious crime becomes routine, there is human tendency to treat it routinely, and sentences often drop accordingly.   In some areas across the country, that phenomenon can even be seen with crimes such as murder.

      While the ideal is that sentences be perfectly personalized by wise, prudent, and consistent judges to fit every individual defendant and crime, the reality is that judges are human, and their wide human differences and perspectives lead to widely different sentences, if given completely unbridled discretion.

      Such wide disparity in sentencing is inherently unfair, at least to those who receive stiff sentences for crimes for which others are punished only lightly.  But such inconsistency was welcomed by drug dealers, since it meant they could hope for a light sentence for serious drug crimes.  That, of course, created a much bigger problem.

      Drug dealers are risk takers by nature.  Lack of certainty of serious sentences for serious crimes encourages, rather than deters, such risk takers to elevate their level of criminal activity in the hope that, if caught, they will be lucky enough to draw a lenient judge and receive a lenient sentence.  The only possible deterrence for people who are willing to take extreme risks is to take away their cause for such hope.

      Some counter that drug dealers are undeterrable by criminal sanctions because they sell drugs to support their own addictions, and so should be treated for their addictions rather than imprisoned.  While there may be some merit to that argument for many low-level street dealers, it is generally untrue of their suppliers, and even many other street dealers.  Most dealers and distributors at any substantial level do not use drugs them-selves, or do so only infrequently.  They are exploiters and predators, and users are their captive prey.  Drug dealing is a business.  As in any other business, drug addicts are unreliable and untrustworthy, especially around drugs, and so make poor business partners.  Because drug dealers usually run their operations as high-risk businesses, they necessarily weigh those risks carefully, and so are deterrable when the risks become too high.  Many dealers who used to carry firearms, for example, now avoid doing so when they are selling drugs due to the high mandatory federal penalties when guns and drugs are mixed.

      However, drug dealers seldom view the risks as too high when they see reason to hope for a light sentence.  Congress, however, can, and did, step in to take away that hope.  By establishing mandatory minimum sentences for serious drug offenses, Congress sent a clear message to drug dealers: no matter who the judge is, serious crime will get you serious time.

      To those who do not view crimes subject to mandatory minimum sentences as serious, including drug dealers and their support systems, that message is objectionable.  To most, it is welcome.  Mandatory minimum sentences put steel in the spine of our criminal justice system.

      The natural question which follows is, what level of dealing must defendants reach before being subject to mandatory minimum sentences, and what are those sentences?  The answer varies with the type of drug and whether the defendant is a repeat offender.

      In the federal system, there are two levels of mandatory minimums, with each level doubling for defendants with prior convictions.  The first tier requires a minimum sentence of imprisonment for five years (10 with a prior felony drug conviction), and the second tier requires a minimum of 10 years (20 with one prior felony drug conviction, and mandatory life with two such prior convictions).  Of that, defendants can receive a reduction in the time they serve in prison of only 54 days per year as a reward for "good behavior," which means they must actually serve about 85% of their sentences.

      For a prior drug offense to be considered a felony, it must be punishable by more than one year.  In the federal system and most states, a drug offense is rarely classified as a felony unless it involves distribution of the drugs involved, or an intent to do so.  For most practical purposes, therefore, a prior felony conviction for a drug such as marijuana can be read to mean a prior conviction for distribution.  And, since most small distribution cases are reduced to misdemeanor simple possession (personal use) charges as part of plea bargains, especially for first-time offenders, a prior felony drug conviction for a drug such as marijuana usually means the prior conviction either involved a substantial amount of the drug or a repeat offender undeserving of another such break.

      In the case of marijuana, those who oppose mandatory minimum sentencing on so-called "humanitarian" grounds seldom mention that, to be eligible for even a five-year minimum sentence, a defendant must be convicted of an offense involving at least 100 kilograms (220 pounds) of marijuana, or, in the case of a marijuana growing operation, at least 100 plants.  Such defendants are not low-level offenders.

      With marijuana available at the Mexican border in Texas for wholesale prices between $600 to $1100 per pound, and selling in most areas at a retail price of between $1200 to $2000 per pound, and with any reasonably healthy cultivated marijuana plant producing at least one and sometimes two pounds of finished product, eligibility for even the lowest mandatory minimum sentence requires conviction of an offense involving between $132,000 to $440,000 worth of marijuana, or plants capable of producing marijuana worth a bulk retail price of between $120,000 to $450,000.

      To be eligible for the next, 10-year tier of minimum sentence, a defendant must be convicted of an offense involving 1000 kilograms (1.1 tons) of marijuana or 1000 marijuana plants.  Even at a low wholesale price of $600 per pound, such offenses involve marijuana worth at least $1.3 million.  One kilogram equals 2.2 pounds.  Conversely, one pound equals 453.6 grams, and one ounce equals 28.35 grams.

      It would be difficult to describe any offense involving between $120,000 to $450,000 worth of drugs as undeserving of even a five year prison sentence.  Yet, those who oppose mandatory minimum sentences for marijuana and other drug offenses do just that, usually by attempting to convey the false impression the criminals they are attempting to protect are only low-level offenders.

      In examining the deterrent potential of such mandatory minimum sentences, one must consider that the profit potential for marijuana offenses is relatively high, and the penalties relatively low, which makes marijuana an attractive drug in which to deal, as evidenced by its widespread availability.  To illustrate, if a dealer bought 200 pounds of marijuana in Texas for $900 per pound for a total of $180,000, transported it to the Midwest and sold it for as low as $1400 per pound, for a total of $280,000 with minimal overhead, the profit for just one such trip would be $100,000.  When the street-level price of between $125 to $300 per ounce is considered, or the lower acquisition costs if the marijuana is grown by the dealer himself, the profit potential for such a venture can be huge, and yet still not involve enough drugs to trigger even the lowest mandatory minimum penalty.  Since the chance of getting caught for any single trip of that sort is relatively low, the prospect of a quick $100,000 profit lures plenty of eager dealers, even with the risk of spending close to five years in prison.

      Of course, if drug dealers are undeterrable, as the actions of many demonstrate they are, the only realistic options left are to either give up and allow them to ply their predatory trade unhindered (the legalization "solution"), or incapacitate them with even longer sentences.

      The debate, it would seem, should be about whether the mandatory minimum penalties for marijuana offenses are currently too lenient, not too harsh.

Mandatory Minimums as a Check on Sentencing Guidelines

      The next question is whether the more recent advent of the federal sentencing guidelines, which also limit judicial sentencing discretion, made mandatory minimum penalties obsolete.  The answer is definitely no.  As a practical matter, only through mandatory minimum sentences can Congress maintain sentencing benchmarks for serious drug crimes which cannot be completely circumvented by the commission which establishes, and sometimes quietly alters, those guidelines.  One of the best illustrations is that of the sentencing guidelines for marijuana growers, who have achieved favorable treatment under the sentencing guidelines, but fortunately not under Congress' statutory mandatory minimum sentences.

      To appreciate the significance of that illustration, one must understand a little about the sentencing guideline system, and its relationship to mandatory minimum sentences.  As part of the Sentencing Reform Act of 1984, Congress mandated the formation of the United States Sentencing Commission as an independent agency in the judicial branch composed of seven voting members, appointed by the President with the advice and consent of the Senate, at least three of whom must be federal judges, not more than four of whom may be from the same political party, serving staggered six-year terms.  That Commission was charged with the formidable task of establishing binding sentencing guidelines to dramatically narrow judges' sentencing discretion, in order to provide reasonable uniformity in sentencing throughout the country, while at the same time taking into reasonable account the myriad of differences between the hundreds of federal crimes and limitless array of individual defendants.

       The result of that enormous undertaking was the adoption, effective November 1987, of the United States Sentencing Guidelines.  Using its provisions, contained in a book one inch thick, courts determine the seriousness of the offense and the extent of the defendant's past criminal history, and use that information to determine on a chart the relatively narrow sentencing range within which they have sentencing discretion.  In drug cases, the seriousness of the offense (offense level) is determined mostly on the basis of the amount of drugs for which a defendant is accountable, with adjustments for factors such as role in the offense, whether a firearm was involved, and whether the defendant accepted responsibility for his or her actions through a candid guilty plea.

      As part of its broad delegation of authority, Congress provided that changes promulgated by the Commission to the Sentencing Guidelines automatically become law unless Congress, within a 180-day waiting period, affirmatively acts to reject them.  By that means Congress avoided a great deal of detailed work, but also created the possibility that changes to the Sentencing Guidelines to which they would object if carefully considered would become law if no one raises a sufficient alarm.

      Because the Commission has only seven voting members, a change of only one member can result in the reversal of a previous 4-3 vote, sometimes with great consequences.  Congress is ill-equipped to deal with the intricacies of the impact of many amendments to the Sentencing Guidelines, and is sometimes preoccupied with other, more pressing or "hot button" issues.  Therefore, the only realistic check on the delegation of authority to the Commission to make changes in drug sentences is the trump card of mandatory minimums.

       That is true because defendants receive the higher of whatever sentence is called for by the statutory mandatory minimums or the Sentencing Guidelines.  If the Commission promulgates a change to the Sentencing Guidelines which calls for lower sentences than required by the statutory mandatory minimums, the mandatory minimums trump the Sentencing Guidelines.  In other words, the mandatory minimums are mandatory, and are beyond the control of the Commission.

      With that background, the vital importance of mandatory minimum sentences as at least a partial check over the Commission in drug sentences is dramatically illustrated by the changes the Commission made regarding sentences for marijuana growers.  The mandatory minimum sentences for marijuana growers imposed by Congress, which kick in at 100 plants, equate one marijuana plant with one kilogram (2.2 pounds) of marijuana.  Until November 1995, the Sentencing Guidelines used that same equivalency in calculating the offense level in cases involving 50 or more plants, but for cases involving less than 50 plants considered one plant as the equivalent of only 100 grams (3.5 ounces).  That 10:1 ratio between the amount of  marijuana to which plants were considered to represent was a major logical inconsistency, since marijuana plants do not produce significantly more or less marijuana just because they happen to be in the company of more or less than 49 other marijuana plants.

       The Commission solved that inconsistency in early 1995 by promulgating an amendment to the Sentencing Guidelines which, instead of eliminating the unrealistically low 100 gram equivalency for smaller cases, eliminated the one kilogram equivalency for larger cases.  Congress did nothing, so, as of November 1995, the Sentencing Guidelines treat all marijuana plants as if they were only capable of producing 3.5 ounces of marijuana.

       In explanation, the Commission stated:

      In actuality, a marihuana plant does not produce a yield of one kilogram of marihuana.  The one plant = 100 grams of marihuana equivalency used by the Commission for offenses involving fewer than 50 marihuana plants was selected as a reasonable approximation of the actual average yield of marihuana plants taking into account (1) studies reporting the actual yield of marihuana plants (37.5 to 412  grams depending on growing conditions); (2) that all plants regardless of size are counted for guideline purposes while, in actuality, not all plants will produce  useable marihuana (e.g., some plants may die of disease before maturity, and when plants are grown outdoors some plants may be consumed by animals); and (3) that male plants, which are counted for guideline purposes, are frequently culled because they do not produce the same quality marihuana as do female plants.  To enhance fairness and consistency, this amendment adopts the equivalency of 100 grams per marihuana plant for all guideline determinations.

       Contrary to those claims, no self-respecting commercial marijuana grower would ever admit his plants produce no more than 412 grams (14.5 ounces) of marijuana, much less that they average only 100 grams.  Based upon long experience with actual marijuana growing operations, it is widely accepted in law enforcement circles that cultivated marijuana plants typically produce about one pound of marijuana (453 grams), and sometimes two pounds (907 grams).  While it is true that some growers cull out the male plants in order to produce the potent form of marijuana known as sinsemilla, derived from the unpollinated female plant, not all growers do so.  And, the observations of the Commission completely ignore the fact that a marijuana plant is a renewable resource--the seeds from one plant can be used to grow several more plants.  It is unrealistic, therefore, to treat one plant as representing only that amount of marijuana it can produce itself, and to require courts to assume all marijuana growers standing before them are incapable of producing more than 100 grams of marijuana per plant.

      Fortunately, Congress was more realistic in establishing its mandatory minimum sentences.  And, for cases involving 100 or more plants, those mandatory minimums trump the Sentencing Guidelines.  The result, however, is still a boon to commercial marijuana growers who are informed enough to keep the number of plants in their operations under 100, or under 1000.  That is because the interaction between the lenient Sentencing Guidelines and the stricter mandatory minimums produces a stair step effect on sentences at the 100 and 1000 plant marks.

      If a marijuana grower is caught raising 99 marijuana plants, no mandatory minimum sentence is triggered.  Under the Sentencing Guidelines, those plants would be treated as the equivalent of 9.9 kilograms of marijuana ($26,135 worth, using a conservative price of $1200 per pound), which, for an offender caught for the first time, would result in an unadjusted sentencing guideline range of only 15 to 21 months.  With the normal adjustment to reward a candid guilty plea, that guideline range would drop to 10 to 16 months.

      In contrast, if that same grower raised just one more plant, for a total of 100, the first tier of mandatory minimum sentences would be triggered, and the court would be required to impose a sentence of five years.  The jump from a maximum sentence of 20 months for 99 plants up to five years for 100 plants is due solely to the overriding effect of the mandatory minimum sentence.

      Not until that same grower was caught with 800 to 999 plants, treated as the equivalent of  80 to 99.9 kilograms of marijuana (at least $211,200 worth), would his unadjusted sentencing guideline range reach the 51 to 63 month mark, and even then a candid guilty plea would drop it to 37 to 46 months.  Consequently, the five year mandatory minimum would probably still control the sentence.  But, if the grower was caught with just one more plant, raising the total to 1000, the second tier of mandatory minimum sentences would be triggered, requiring a sentence of 10 years.  Again, the jump from a maximum sentence of 63 months for 999 plants up to 10 years for 1000 plants is due solely to Congress' mandatory minimum sentence scheme.

       Without those mandatory minimum sentences, the commission's view that marijuana plants should only be treated as the equivalent of 100 grams of marijuana would be controlling, which marijuana growers would doubtless applaud.  Only because of the mandatory minimums does the more sensible view of Congress that each marijuana plant should be treated as the equivalent of one kilogram of marijuana impact growing operations involving 100 or more plants.

       Ultimately, whether the effect of those mandatory minimum sentences is good or bad depends upon how seriously one views marijuana use.  If a person believes a sentence of five years is too harsh for growing 100 marijuana plants conservatively capable of producing between $26,400 to $120,000 worth of marijuana, or distributing 220 pounds of marijuana worth at least $264,000, the mandatory minimum sentences for marijuana should be abolished.  If, however, a five year sentence for such crimes seems reasonable, or even lenient, the mandatory minimums should be retained, and perhaps toughened.

       There is no doubt about on which side of that question the marijuana growers, dealers, users, and their supporters stand.  There is also little room to doubt on which side those who take marijuana crimes seriously should stand.         

David Risley is an Assistant United States Attorney in the Central District of Illinois, where he serves as the Lead Organized Crime Drug Enforcement Task Force Attorney over that district’s 46 counties. Prior to becoming a federal prosecutor 17 years ago, he served as a state prosecutor in Champaign County, Illinois. He received a Bachelor of Science degree in finance and urban economics from the University of Illinois in 1975 and graduated with honors from the J. Reuben Clark Law School at Brigham Young University in 1981.

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