The Drugs Minus Six Amendment: Trading Drug Quantity for Better Measures of Culpability

Abstract In drug cases, the Guidelines frequently produce sentencing ranges that are greater than necessary. This problem is most pronounced at the highest offense levels and is reflected in the high rates at which judges impose sentences below the guidelines range. The drug guideline’s quantity-based approach tied to mandatory minimums is not required and should be changed. This article’s authors propose the Sentencing Commission amend the drug guideline to (1) reduce most of the base offense levels in the Drug Quantity Table by 6, (2) expand and strengthen the list of specific offense characteristics, and (3) cap cumulative offense levels for nonviolent drug crimes. Together, these changes would reduce the focus on drug quantity and emphasize offense characteristics that better capture a person’s culpability. A “Drugs Minus Six” Amendment is consistent with the Commission’s previous amendments to the drug guideline and offers a more workable fix than alternative proposals that focus on downward adjustments. Mitigation-based downward adjustments have proved difficult to operationalize and will likely result in either underinclusive binaries or overcomplicated inquiries that deter widespread usage. A reduction to baseline sentences must be the core of any meaningful reform to the drug guideline.