Judge Gertner assails quantity-based drug guidelines
District Judge Nancy Gertner has a new opinion which takes on and takes down the notion that drug quantities provide a sound basis for sentencing levels. Here are parts of the start of Judge Gertner’s work in US v. Cabrera, No. 06cr10343-NG (D. Mass. July 25, 2008) (available for download below):
Oscar Cabrera (“Cabrera”) was, at most, a delivery man caught in a government sting. He hardly fits the profile of a major drug dealer. He was told — apparently at the last minute — to pick up the drugs that undercover government agents had brought from Texas. At the time of the deal, he was homeless, living out of his car; he had little or no idea about what was going on in the drug deal; he had no role in negotiating it, no money with him at the time of the sting, and was not remotely capable of investing in this drug transaction, or for that matter, any other. The real purchasers did not trust him with much, and surely not the drug money. He was to receive perhaps $250 to $500 (the amount was never set) for drugs valued far, far more than that. He had no prior criminal record. The agents had no idea who he was prior to his arrest. The real purchasers got away. Cabrera was caught — quite literally — holding the bag.
The statute under which Cabrera was prosecuted, and the Federal Sentencing Guidelines, focus largely on the quantity of drugs the defendant had, minimizing the significance of other relevant — and important — questions, like the defendant’s real role in the offense or his background…. If I were to follow the Guidelines and sentence Cabrera solely on the basis of the drugs government agents brought with them, the result would be a classic case of false uniformity. False uniformity occurs when we treat equally individuals who are not remotely equal because we permit a single consideration, like drug quantity, to mask other important factors. Drug quantity under the Guidelines treats as similar the drug dealers who stood to gain a substantial profit, here the purchasers who escaped, and the deliveryman, Cabrera, who received little more than piecework wages.