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Ebinder, Reply Comment on Proposed Amendment Sand Issue for Comment on Synthetic Drugs

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Ebinder, Reply Comment on Proposed Amendment Sand Issue for Comment on Synthetic Drugs FEDERAL DEFENDER SENTENCING GUIDELINES COMMITTEE Lyric Office Centre 440 Louisiana Street, Suite 1350 Houston, Texas 77002-1634 Chair: Marjorie Meyers Phone: 713.718.4600 March 10, 2017 Honorable William H. Pryor Acting Chair United States Sentencing Commission One Columbus Circle, N.E. Suite 2-500, South Lobby Washington, D.C. 20002-8002 Re: MDMA/Ecstasy, MDPV, Methylone, Mephedrone, JWH-018, AM-2201 Dear Judge Pryor: While Defenders opposed the Commission’s proposal to make synthetic cannabinoids and cathinones a priority this amendment cycle, Defenders appreciate that the Commission is not trying to act on this complicated issue this year, and instead is engaged in a two-year study. Although we remain concerned that even a two-year study period may not be sufficient to adequately address these “understudied substances,”1 we are pleased that the Commission is not considering these drugs in isolation, and is also examining its approach to MDMA. When the Commission decided in August 2016 to undertake a study of MDMA/Ecstasy, synthetic cannabinoids and synthetic cathinones, it said that it would consider “any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such a study.”2 Because of the numerous issues that have arisen with drugs not listed in the drug equivalency table, as well as drugs already listed, Defenders believe that the Commission should study not only the specific controlled substances listed in the request for comment, but also other aspects of the drug guideline. Among the issues Defenders encourage the Commission to study are the following: the appropriate role of drug quantity and how direct harms of the drugs at issue should be measured; amending the factors that govern a court’s consideration of analogues and controlled substances not referenced in §2D1.1;3 including an invited departure when the 1 Congressional Research Service, Synthetic Drugs: Overview and Issues for Congress (May 3, 2016) (citing Office of National Drug Control Policy, National Drug Control Strategy 2013, at 10). 2 USSC, Notice of Final Priorities, 81 Fed. Reg. 58004 (Aug. 24, 2016). 3 Those factors are listed in §2D1.1, comment. (n.6). Honorable William H. Pryor March 10, 2017 Page 2 potency of an analogue is less than the “most closely related” substance referenced in the guideline; and re-examining the drug equivalency for THC.4 Our specific comments follow. I. The Guidelines’ Focus on Drug Quantity Does Not Serve the Purposes of Sentencing and Should be Revisited Without more guidance on how the Commission intends the drug guidelines’ emphasis on drug type and quantity to advance the statutory purposes of sentencing, it is difficult to analyze and comment on how the guidelines should treat offenses involving MDMA, synthetic cathinones and synthetic cannabinoids. Judges and scholars have long cited the excessive weight given drug quantity as the drug guidelines’ chief flaw.5 Defenders and others have urged the Commission to review how the drug guidelines are linked to mandatory minimums through the Drug Quantity Table (“DQT”) and whether this linkage advances any purpose of sentencing.6 Research and 4 See also Statement of Molly Roth Before the U.S. Sentencing Comm’n, Washington, D.C., at 28–30 (Mar. 13, 2014) (suggesting invited downward departures for (1) “when the weight of the mixture or substance containing a detectable amount of a drug over-represents the actual dosages that are involved and the seriousness of the offense”; and (2) “when quantity overstates the defendant’s role in the offense”). 5 See, e.g., Judicial Conference of the United States, 1995 Annual Report of the JCUS to the U.S. Sentencing Commission 2 (1995) (“[T]he Judicial Conference . encourages the Commission to study the wisdom of drug sentencing guidelines which are driven virtually exclusively by the quantity or weight of the drugs involved.”); General Accounting Office, Sentencing Guidelines: Central Questions Remain Unanswered (1992) (harshness and inflexibility of drug guideline most frequent problem cited by interviewees); Peter Reuter & Jonathan P. Caulkins, Redefining the Goals of National Drug Policy: Recommendations from a Working Group, 85 Am. J. Pub. Health 1059, 1062 (1995) (reporting recommendations of a RAND corporation working group, which concluded: “The U.S. Sentencing Commission should review its guidelines to allow more attention to the gravity of the offense and not simply to the quantity of the drug.”); United States v. Diaz, 2013 WL 322243, at *1 (E.D.N.Y. Jan. 28, 2013) (discussing that “drug type and quantity” are “poor proxies for culpability” and encouraging Commission to “de-link” §2D1.1 from “weight-driven mandatory minimum sentences”). 6 See, e.g., Statement of Michael Nachmanoff, Federal Public Defender for the Eastern District of Virginia, Before the U.S. Sentencing Comm’n, Washington, D.C. (May 27, 2010); Statement of Julia O’Connell, Federal Public Defender for the Eastern and Northern Districts of Oklahoma, Before the U.S. Sentencing Comm’n, Austin, Tex. (Nov. 19, 2009); Statement of Nicholas T. Drees, Federal Public Defender for the Northern and Southern Districts of Iowa, Before the U.S. Sentencing Comm’n, Denver, Col. (Oct. 21, 2009) (citing numerous problems with drug trafficking guidelines and urging major revision); Statement of James Skuthan, Before the U. S. Sentencing Comm’n, Washington, D.C. (Mar. 17, 2011); Statement of Molly Roth, Before the U. S. Sentencing Comm’n, Washington, D.C. (Mar. 13, 2014). See also Letter from Paul G. Cassell, Chair, Committee on Criminal Law of the Judicial Conference of the United States, to the Honorable Ricardo Hinojosa, Chair, U.S. Sentencing Comm’n, at Honorable William H. Pryor March 10, 2017 Page 3 analyses have shown that determinations of drug quantity are often arbitrary and capricious, are estimated from hearsay or other unreliable evidence,7 are easily manipulated by law enforcement agents and confidential informants,8 and result in “false precision.”9 For the Commission to rationalize sentencing for particular substances such as the synthetics currently being studied, it should reconsider its prior decisions. The Commission has cited different rationales for the DQT at different times. Congress’s intention that “[d]rug quantity would serve as a proxy to identify those traffickers of greatest concern” has long been cited.10 The mandatory minimums have been described as creating a “two-tiered penalty structure for discrete categories of drug traffickers” that would differentiate among “major” and “serious” traffickers.11 But research both inside and outside the Commission has amply demonstrated that the quantity thresholds found in the statutes, and incorporated into the DQT, do a poor job of making this differentiation and often result in guideline recommendations exceeding the levels Congress intended for various functional roles.12 3 (Mar. 16, 2007) (reviewing history); Mandatory Minimums and Unintended Consequences, Hearing Before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, House of Representatives, 111th Cong. 34 (July 14, 2009) (statement of Hon. Julie E. Carnes) (reviewing history), http://judiciary.house.gov/hearings/pdf/Carnes090714.pdf; Mandatory Minimum Sentencing Laws—The Issues, Hearing Before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, House of Representatives, 110th Cong. (June 26, 2007) (statement of Hon. Paul Cassell), http://judiciary.house.gov/hearings/June2007/Cassell070626.pdf; United States v. Booker: One Year Later—Chaos or Status Quo?, Hearing Before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, House of Representatives, 109th Cong. 59-65 (Mar. 16, 2006) (statement of Hon. Paul J. Cassell). 7 Estimates of quantities that were not actually seized, that were under negotiation, etc., inevitably are unreliable approximations. See, e.g., United States. v. Quinn, 472 F. Supp. 2d 104, 111 (D. Mass. 2007). 8 Jeffrey L. Fisher, When Discretion Leads to Distortion: Recognizing Pre-Arrest Sentence-Manipulation Claims under the Federal Sentencing Guidelines, 94 Mich. L. Rev. 2385 (1996); Eric P. Berlin, The Federal Sentencing Guidelines’ Failure to Eliminate Sentencing Disparity: Governmental Manipulations Before Arrest, 1993 Wis. L. Rev. 187 (1993). 9 Justice Stephen Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sent’g Rep. 180 (Feb. 1999). 10 USSC, Cocaine and Federal Sentencing Policy 118 (1995). 11 USSC, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 24, n.144, 145 (2011). 12 See USSC, Cocaine and Federal Sentencing Policy 42-49 (2002) (showing drug mixture quantity fails to closely track role and other important facets of offense seriousness); USSC, Cocaine and Federal Honorable William H. Pryor March 10, 2017 Page 4 Commission analyses also have sometimes discussed: 1) methods of ingestion of various forms of a drug and collateral harms of use: 2) the prevalence of use among various demographic populations, or involvement of these groups in trafficking: 3) possible deterrent effects of various penalty levels; 4) the effects of penalties on incentives for investigation and prosecution of particular controlled substance violations; 5) the effect of drug penalties on the prison population; and 6) Congressional intent or sentiment, as expressed through legislation or formal and informal communications. The
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