Supporting Responsive Federal Drug Sentencing Through Education in the Workshop on Science-Informed Decision Making

On the federal level, judicial education in sentencing has been focused primarily on preparing judges to calculate and apply the Federal Sentencing Guidelines. But in an advisory guidelines context, making individualized assessments in drug cases requires education in the science of addictions, the drivers of behavior, and the prospects for behavior change when substances are involved. Neuroscience and the sciences of human behavior provide clarifying insight into substance-driven behaviors and cognitions that are routinely encountered in federal drug cases. These disciplines support individualized sentencing by shedding new light on the nature of inhibitory control, the reasonable expectations for relapse, and the distinctions that can be drawn based on science between different treatment interventions. In this Article, we report on the Workshop on Science-Informed Decision Making, an education initiative in the federal judiciary. Since 2016, it has provided education in neuroscience and behavioral science, as well as skills training in individualizing sentences using insights from that science, to U.S. district judges, magistrate judges, and pretrial services and probation officers in thirty-two federal districts. We describe the case-study-based instructional approach of the workshop, including some of the misconceptions about addiction behavior it addresses, and explain why we believe that this kind of education helps federal judges, and pretrial services and probation officers, craft more responsive sentencing decisions and recommendations.

Why Are Federal Meth Sentences Getting Longer?

While sentence lengths for most federal drug trafficking offenses have decreased in recent years, methamphetamine sentences are moving in the opposite direction, lengthening by 12% between FY2015 and FY2019. Using data from the U.S. Sentencing Commission and other sources, I consider several possible reasons for this increase. I conclude that four recent trends have jointly produced longer meth sentences: (1) drug volumes have increased, (2) the criminal history of the average offender has become more extensive, (3) weapon enhancements and charges have become more common, and (4) cases have grown increasingly likely to be sentenced as high-purity “ice” or by “actual” meth content, which carry much more punitive mandatory and guideline minimums than meth mixture. How much of the increase in sentence lengths has been attributable to shifting case characteristics (e.g., growing drug volumes, changing criminal histories, and increased weapons use) versus efforts to charge and pursue offenses that carry greater penalties? I use USSC data to conduct several simulations estimating how sentence lengths would have evolved if all meth cases were sentenced as the same meth type. I predict that the average meth trafficking sentence would have lengthened by 27–33% less, or 3.3–4.0 fewer months, if all cases were sentenced as the same meth type but all other case attributes remained unchanged. The remainder of the growth is attributable to case and offender characteristics. However, this prediction assumes that relief and leniency decisions would not change if statutory and guideline minimums were altered; to allow for this possibility, I run another set of simulations, taking these possible offsetting effects into account. My latter simulations predict that trafficking sentences might have increased 13–16% less than they did in reality, a smaller magnitude than my initial estimates. I briefly consider the underlying reasons for these trends. Some, but not all, of the changing offense characteristics may be linked to the recent shift to Mexican methamphetamine production. The timing of the shift in meth type charged suggests it may largely be the result of a change in Justice Department charging policy enacted in 2017; this shift cannot be attributed to any change in drug purity.

Sentencing Federal Drug Offenders

The Drug War ushered in harsh sentencing practices in the United States. The severity in penalties has been particularly salient in the federal criminal justice system. Increased statutory penalties and U.S. Sentencing Commission guidelines led to drug users and traffickers serving longer periods of incarceration. As a result, the federal correctional system is overburdened. A noticeable change in attitude is evident. Congress has offered leniency for certain first-time drug offenders in the form of a statutory safety valve. While a progressive step, the safety valve applies to relatively few individuals. Importantly, federal judges have some discretion to reject what they might consider to be overly lengthy sentencing mandates. This Article provides an empirical study of sentencing statistics for drug offences. The sample derives from the U.S. Sentencing Commission’s fiscal year 2019 dataset of over 20,000 cases sentenced for drug crimes. Results show that judges employed various mechanisms to reduce statutory- and guidelines-based penalties. Strategies by judges include avoiding mandatory minimums (using the safety valve and otherwise), giving greater point reductions than permitted, and rejecting Commission policies. Over 60% of sentences were below the guidelines’ minimum recommendations. The consequences are beneficial in alleviating strain on the federal prison population, but create inconsistency in sentencing practices. A qualitative component supplements the quantitative. Judges, when issuing their statement of reasons for the sentence, may include textual comments. These comments provide valuable contextual information in how judges articulate their concerns with sanctions for drug offenders. Overall results present important policy considerations.

Sentencing to Drug Court

Drug courts are frequently touted as an alternative sentencing option for low-level drug offenders and were even promoted by U.S. presidential candidates in 2020. While national organizations tout that “Drug Courts Work,” there are many who question their efficacy. Favorable statistics and success stories depend on close fidelity to the prescribed models from the National Association of Drug Court Professionals. With rapid adoption of drug courts nationwide, and little oversight of their fidelity to the drug court model, some judges may operate drug courts in ways that can harm, rather than help, an increasing number of participants. Improper drug court admissions and heavy use of jail sanctioning lead to worse outcomes for participants—and to suspicion toward drug courts among the criminal justice reform movement of which drug courts aim to be a part. While the drug court model has evolved as a treatment model for offenders with high criminogenic risk and high treatment need, some judges either disregard or are unaware of this shift. Participants are supervised more closely and are often given higher treatment dosages than they require to address their substance use disorder. Low-level offenders may end up with accrued jail time through their drug court participation that exceeds the amount they would have received had they simply been sentenced to a jail term at the outset of their plea. Increased oversight of drug courts, combined with required education for judges and court staff, will lead to a better understanding of the drug court model. By identifying the proper target population, focusing on treatment, and reducing or eliminating jail sanctions, drug courts will align with the national model, improve outcomes, and reduce both jail time and recidivism of their participants. This Article outlines the evolution of the drug court model and shows that lack of understanding of that evolution leads to harsher sentencing for low-level drug offenders.

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.

Public Support for Using “Second Chance” Mechanisms to Reconsider Long-Term Prison Sentences for Drug Crimes

Using a national sample of U.S. adults (N = 371), this study experimentally examines (1) public support for the use of strategies that provide early release (i.e., “second chance” mechanisms) to individuals serving long-term prison sentences for drug crimes; and (2) how levels of support, and reasons for support, may vary depending on the type of drug-related offense. Results show moderate levels of support for using second chance mechanisms, both generally and in relation to specific strategies commonly available across jurisdictions, for a range of drug offenders. Yet participants showed significantly more support for using presumptive parole, elimination of parole revocations for technical violations, second-look sentencing, and compassionate release in the cases of those incarcerated long term for serious trafficking of marijuana, as compared to serious trafficking of serious drugs. Data also suggest that the public finds a range of factors—including the original sentence being extreme by international standards, extreme due to racially biased practices, out of step with current sentencing values/practices, too costly, and continuing to incarcerate someone unlikely to be a public safety threat—as at least moderately important to their support for the use of second chance mechanisms across drug crimes, and the importance of these factors to that support does not appear to differ significantly based on the type of drug offense. The importance of these results for policy making and utilization are discussed, as well as implications for reducing our historical reliance on drug-related incarceration.

A History of Early Drug Sentences in California

The early history of drug sentences in California provides a quintessential example of structural racism in law. The demands of white voters to escalate penalties for drug crimes followed a pattern of collective myth making and value signaling that insisted opiates, cocaine, and cannabis were extremely dangerous, led to other crime, and prevalently were used and sold by immigrants and other despised groups. Public pressure for more severe punishment seemed to peak twice, in the 1920s and 1950s, in response to exaggerated threats such as “dope peddlers” targeting children and profitable “dope rings” controlled by subversive foreigners. Amplified by a self-seeking, robust news media and a multitude of fraternal, civic, and religious organizations, the frightful construction of illicit drugs seemed to demand a simple and uncompromising response: to punish drug users harder by increasing terms of incarceration. But white voters always understood that drug laws targeted immigrants and communities of color, and law enforcers used extreme penalties as leverage to pursue corrupt and racist prerogatives unrelated to reducing drug use. Drug penalties in California were developed over many decades with almost extreme levels of participation by antidrug activists and law enforcers. Appearing somehow scientific, the resulting arrays of penalties implied that the cruelest sentences were reserved for the truly blameworthy, when in fact they were reserved for the marginalized. Moreover, several legal conventions born of these penalty structures—mandatory minimums, the distinction between user and seller, punishment of addiction itself, and presumptions arising from drug quantities—still exacerbate the oppressive nature of drug statutes.

Crack 2.0

The 1984 Sentencing Reform Act charged the U.S. Sentencing Commission with developing sentencing guidelines that advanced the purposes of sentencing under 18 U.S.C. § 3553(a). After the Supreme Court cases Booker, Kimbrough, Gall, and Spears, it is now well established—at least with federal drug trafficking offenses—that the Commission did not fulfill that directive. The magnitude of that failure (coupled with some of Congress’s own misguided decisions) has previously been highlighted by the evolution of federal crack sentencing policies, the Fair Sentencing Act, the related line of Supreme Court cases, and more recently the First Step Act. Congress’s compromise correction of over twenty years (essentially a generation) of a failed war on crack did nothing to further correct similar defects with federal drug sentencing policies for other controlled substances—particularly with respect to methamphetamine. Given the resurgence of methamphetamine trafficking, use, and prosecutions, this paper will analyze post-1988 federal methamphetamine sentencing policy to illustrate how the drug-type, quantity, and purity model for punishing drug trafficking offenses still produces unwarranted sentencing disparities between similar controlled substances or different forms of the same controlled substances—and in the end plainly fails to effectively deter the targeted criminal conduct or advance the purposes of federal sentencing under 18 U.S.C. § 3553(a).

The Office of the Pardon Attorney

The Office of the Pardon Attorney has served presidents well for many decades, but recent presidents have become frustrated with it for various reasons. In this article, I examine the office’s past and present, then look at possible reforms to better prepare the clemency screening process for the Biden administration and its successors.