Function over Form in Federal Drug Sentencing

Abstract Although the U.S. Sentencing Commission’s drug guidelines were intended to align punishment with culpability, decades of sentencing practice reveal a different reality. Outcomes are primarily driven by drug type and quantity, which have proved to be poor proxies for assessing culpability. This article’s authors put forward a new approach to drug sentencing that instead focuses on a person’s function in a drug enterprise. They also propose anchoring base offense levels to pre-Guidelines sentencing data. To illustrate this model, the authors present a rewritten version of USSG § 2D1.1 incorporating their proposed framework. Focusing on function rather than drug type and quantity will ensure that sentences are calibrated based on culpability and better fulfill the core purposes of punishment.