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October 29, 2019

Remember to attend Professor Kreit's class on drug sentencing in Room 344 at 3pm on 10/30

I missed seeing everyone this week at our usual Monday time, and I just waned to post this quick reminder that you should be sitting in on Professor Alex Kreit's class at our usual Wednesday time to hear him talk about sentencing drug crimes.  I handed out the Chapman case from his casebook last week, but I am also going to post his class materials here as well:

Download Kreit_10_30_ClassReading

As always, students are welcome and encouraged to use the comments here to share their take on readings or class discussions.

October 29, 2019 in Class activities | Permalink


I agree with Justice Steven's dissent in Chapman that the “consequences of the majority’s construction of 21 U.S.C. § 841 are so bizarre that I cannot believe they were intended by Congress.”167.

The rule of lenity should apply when interpreting a criminal statute that produces such harsh and disparate results among types of drugs and the medium they are carried.

Courts should not be able to increase a defendant's sentence when the congressional intent regarding the scope of the statute is unclear.

Punishing a defendant based on the
weight of the carrier of the drug that is not itself illegal-- bong water in (Minnesota v. Peck) and blotter paper in Chapman-- seems nonsensical and absurd.

A diametrically opposed approach would result in prosecutors taking advantage of statutory language to overreach and over-punish.

Posted by: Mariah Daly | Oct 29, 2019 5:29:45 PM

One aspect of Professor Kreit's class today that I found interesting was the discussion of how marijuana is counted for sentencing purposes.

Professor Kreit discussed U.S. v. Holsted, 52 Kan.App. 2d 655 (2016) in which Holsted's home was searched and 29 marijuana cuttings and one large marijuana plant with a developed root system were discovered. It goes without saying that the cuttings will likely grow into plants. But, does that make them "plants" for purposes of determining whether Holsted possessed an illegal number of plants? The court said that it was only appropriate to consider what "plants" were present at time of the search. Because cuttings are not yet plants (due to their lack of a developed root system), Holsted only had one "plant" in his possession.

The determination of what constitutes a marijuana "plant" is especially important to states that have legalized the medical and/or recreational use of marijuana. This is because many of the states that allow people to grow their own marijuana specify the number of plants that may be grown. However, what about the size of the "plant?" Or, its health? As soon as a root system exists, should all "plants" be treated as equal?

Posted by: Anna Crisp | Oct 30, 2019 5:57:14 PM

Prof. Kreit’s class opened my eyes to an irony lurking in drug trafficking sentencing: although federal sentencing guidelines for drug trafficking offenses are some of the most detailed and precise in the manual, their application to real offenders is perhaps the least precise of any type of crime. That is, the precision in the guidelines doesn’t translate to real life sentences. In fact, the extreme precision of the guidelines may lead to more unjust sentences as applied to certain offenders.

As we discussed in a prior class, the Sentencing Manual’s Drug Quantity Table provides extremely specific numeric guidelines that correspond to each base offense level. Theoretically, this should lead to simplicity in sentencing--if a defendant was arrested for transporting X grams of Y drug, then his sentence should be Z. However, as Prof. Kreit discussed in class, drug trafficking crimes are far more complicated than that. Just because an offender is caught with X grams on one day doesn’t say much about his activity on other occasions, or the extent of his involvement in a drug trafficking network. Drug trafficking operations often last years, with different players entering and exiting the operation at different times. Even if the government conducts wiretaps or other surveillance, it still probably won't gather any tangible evidence in the course of those investigative measures that would provide for an accurate and fair quantity-based sentence. Prof. Kreit also touched on the reality of the insulation of “big time” players in drug trafficking organizations (i.e., those who are running the operations and therefore most culpable). Often, those big time players make concerted efforts to keep their hands off large or pure quantities of the drugs they transport. Lower-level players are often the people handling large or pure quantities. So, is a quantity-based sentencing system really fair?

Moral of the story: precision in a manual (or a statute, or any written document) doesn’t always translate to precision in real life. As we’ve seen time and again in this class, sentencing law is far more complicated in practice than in theory.

Posted by: Hannah Wirt | Nov 3, 2019 4:06:44 PM

Great comments, everyone. I am so glad that Prof Kreit's class provided another window into all the topics we have been exploring throughout the semester. Reinforcing Hannah's last comment, I would say that the more I think about sentencing law, the more I conclude that it is really hard in theory and even much harder in practice!

Posted by: Doug B. | Nov 4, 2019 9:24:37 AM

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