Function Over Form in Federal Drug Sentencing

By Alison Siegler and Grant Delaune

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. We put forward a new approach to drug sentencing that instead focuses on a person’s function in a drug enterprise. We also propose anchoring base offense levels to pre-Guidelines sentencing data. To illustrate this model, we present a rewritten version of Guideline § 2D1.1 incorporating our 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.