No Justice by the Numbers: The Federal Sentencing Guidelines Misadventure

By Ball, Peter E. | Commonweal, October 8, 1993 | Go to article overview
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No Justice by the Numbers: The Federal Sentencing Guidelines Misadventure


Ball, Peter E., Commonweal


Jesus Lopez-Gil was a courier, or "mule," in one of the more ingenious plans devised for smuggling cocaine through an airport. Unlike most mules, LopezGil did not have the drugs hidden in his baggage, strapped to his body, or wrapped in condoms that he had swallowed. With Lopez-Gil, the luggage he carried was the cocaine. Mixed right into the thirty-one pounds of black fiberglass that made up the side panels of his two suitcases was slightly more than five-and-a-half pounds of cocaine, which could be extracted only by a chemical process that separated the drugs from the fiberglass.

When it came time to sentence Lopez-Gil, whose nervous demeanor had led to his airport arrest, this strange case got even stranger. The law that governs sentencing in federal cases, the Sentencing Reform Act of 1984, did not permit the judge to hand down a sentence that he thought fit the crime and the offender. Rather, he was required to focus on and decide two questions of legal and pharmacological esoterica: ( 1 ) whether the weight of the cocaine that Lopez-Gil had tried to smuggle equaled the net weight of the drugs after extraction from the fiberglass panels or the gross weight of the panels; and (2) whether the cocaine that was ultimately extracted from Lopez-Gil's suitcase should be considered "cocaine base" or regular old cocaine. (The cocaine was in its "base" form, meaning it had not yet been refined into pure powder, or cocaine hydrochloride. While the Federal Sentencing Guidelines in effect at the time called for much stiffer penalties for smuggling "cocaine base," it was unclear whether these penalties were meant to apply to all cocaine base or just the most inimical type, the deadly "crack" cocaine.) Riding on these decisions was well more than a decade of Lopez-Gil's life. On the first question, the Federal Sentencing Guidelines, which went into effect on November 1, 1987, mandated a prison sentence that was at least two years longer for the greater quantity of cocaine. And, on the second, the guidelines required a prison sentence that was more than a dozen years longer if the drugs were considered "cocaine base."

Nearly three years after his arrest, Lopez-Gil's sentence is still not final, and the case has gone up and down on appeal several times. While the First Circuit Court of Appeals in Boston has ruled that the sentence must be based on the gross weight of the suitcase panels and that "cocaine base" includes more than "crack," the matter has been sent back to the sentencing judge to determine whether the "base" form of cocaine here is "cocaine base," as that term was used in the guidelines. When Lopez-Gil is ultimately sentenced, while the sentencing guidelines will require the judge to answer the bizarre questions posed above, they will not permit him to even ask the questions that a judge traditionally ponders before passing sentence: Is the sentence fair? What is its deterrent effect? What is its rehabilirarive effect? Does it provide just retribution? Does it sufficiently incapacitate a defendant who, if free, might commit additional crimes?

Although the Lopez-Gil case is an extreme (and soon-to-be corrected) example, it evidences a systemic myopia that is one of the key reasons why, nearly six years after the noble guidelines experiment began, I have joined the ranks of those who believe that the guidelines sentencing scheme is neither better nor fairer than the concededly imperfect system it replaced, in which federal judges had virtually unfettered discretion to hand down sentences that fell anywhere between the minimums and maximums set out in the statute that had been violated.

According to Justice Department statistics, in recent years more than 80 percent of federal criminal cases have resulted in convictions, either after trial or as a result of guilty pleas. Thus, in the vast majority of federal cases--which involve more than 50,000 defendants a year--the most important issue is sentencing, and the Federal Sentencing Guidelines have effected the most significant changes in federal sentencing since the first federal criminal statute was enacted into law more than two hundred years ago.

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No Justice by the Numbers: The Federal Sentencing Guidelines Misadventure
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