Sentencing Drug Offenders Justly While Reducing Mass Incarceration

In my paper, I discuss what I believe is the most effective approach to sentencing drug defendants. I start with the proposition that in many, if not most cases, incarcerating drug offenders does more harm than good. Imprisonment contributes to mass incarceration, does not deter unlawful drug activity and has an adverse racial impact. Thus, if a judge can reasonably avoid imposing a prison sentence, he or she should do so. Fortunately, this is the judge’s duty under the law. 18 U.S.C. §3553(a) requires a judge to impose a sentence that is “sufficient but not greater than necessary…” or, in other words, the least restrictive reasonable sentence. Thus, in every case, the judge must first consider whether a non-incarcerative sentence is sufficient. It often will be. In determining the appropriate sentence, a judge should focus on what the offender did and why and what he or she will likely do in the future and pay less attention to such factors as drug type and drug weight. Sometimes, a mandatory minimum sentence will apply and prevent a judge from imposing a fair sentence, but that is outside the judge’s control. Fortunately, because of Booker and its progeny, the Federal Sentencing Guidelines do not pose a similar problem. The judge, of course, must calculate and consider the applicable guideline but in many cases the guideline will be irrelevant to a just sentence. This is so because the guidelines are excessively oriented toward prison sentences and thus frequently conflict with the sufficient but not greater than necessary command of §3553(a). In my paper, I provide numerous examples of sentences that I have imposed and explanations of those sentences to illustrate this approach.