Sentencing reform efforts under way in Congress and the states do not address “a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy's utter failure,” former federal prosecutor Mark Osler writes in the New York Times. If a kingpin imports 15 kilograms of cocaine into the U.S. and pays a trucker $400 to carry it, both face the same potential penalty.
That's because the laws link minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant. Osler, now a law professor at the University of St. Thomas in Minnesota, says, “It's a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons.” Osler says we should learn the lesson of Al Capone, who didn’t drive a beer truck or stand guard over illegal whiskey during prohibition, and that made him hard to prosecute. Weight-based statutes and sentencing guidelines allow law enforcement to arrest mules and street dealers and claim they are kingpins, Osler says. Some laws create remarkably low thresholds for the highest penalties.