What Passes as “Scholarship” About Drug Sentencing

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A recent article featured on Sentencing Law and Policy reminded me of why my first career was with the Justice Department and I came to legal academia only later.  The gist of the article  —  written by a law professor and appearing in SSRN  —  is that drug sentencing is a product of an ignorant electorate’s “moral panic,” and that the Supreme Court should rein in us wahoos by deciding for us what drug sentencing should be.

Here is the entire abstract, as repeated on SL&P:

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs. Responding to that panic, legislators have authorized severe sentences for drug offenses. By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule. Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic. For example, it eroded Fourth Amendment protections during the War on Drugs. Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs.

This article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes. In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment. There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense. Whatever hope Solem created that courts might limit excessive sentences proved to be false. Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences. In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana. In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine. The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage.

Since the height of the War on Drugs, Americans have changed their views about drugs. Significant majorities of Americans favor legalization of marijuana for medical and recreational use. Many Americans favor a wholesale rethinking of drug policy. Despite studies in the 1950s and 1960s, demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs.

This article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences. The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense. In turn, the gravity of an offense turns on its social harm and the culpability of the offender. The Court upheld extreme drug sentences based on the view that drugs were a national scourge. Moral panic led it to overstate the social harm and the culpability of drug offenders. Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use.

OK, where to start?

—  It’s pretty obvious that the author gets a kick out of referring to the decades-long decision by the electorate and Congress that drug dealing warrants serious punishment as a “moral panic,” and remorselessly repeating that phrase, but what’s the point?  Just smearing a conclusion held by so many for so long can’t possibly be thought of as scholarship.  Indeed, it’s hard to think of it as anything beyond a tenth grade debate stunt.  Congress’s conclusions about drug sentencing may well partake in part (and certainly should partake in part) of moral principles, but the idea that they result from panic (a 50 year-long “panic”!) is preposterous.  They result from experience, particularly experience with addiction, and the reflection to which that experience gives rise.

—  Same deal with the author’s referring to the democratic process as “mob rule,” although this is far from the first time that smear has been aimed at legislative results with which legal academics disagree.

—  It’s quite true that Article III gives federal judges independence.  But it is not true that independence means license, and still less license to revise considered democratic outcomes simply because judges would have preferred different ones.  I mean, does this really need to be said at this point?

—  “The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage”  —  says the author.  Let’s put that another way:  “The Court’s refusal to curtail harsh drug sentences reflects its willingness to accede to the electorate’s judgment about the serious consequences of drug abuse and addiction.”  Is legal “scholarship” now grounded in the belief that just using florid language for more neutral language is a substitute for reasoning?

—  And the article continues, “Since the height of the War on Drugs, Americans have changed their views about drugs. Significant majorities of Americans favor legalization of marijuana for medical and recreational use. Many Americans favor a wholesale rethinking of drug policy.”

Here’s the problem:  Those three sentences range from outright false to significantly misleading.  It’s simply not true that, since the “height of the War on Drugs” (roughly the mid-1980’s through the 1990’s), Americans’ views about drugs as a whole have changed.  To the contrary, a 2014 poll by the Huffington Post, of all things, showed that massive majorities favor retaining criminal prohibition on every drug but pot  —  which explains why the author’s second sentence quietly slips away from  drugs generally (no mention of meth, heroin, Ecstasy, or the other drugs that have parents most in fear) to discuss pot only.  And while it’s undoubtedly true that “many” Americans favor a wholesale rethinking of drug policy,  left unstated (and thus unexplored) is what “many” means.  The author uses it to imply that electorally significant numbers of citizens want lighter (or no) drug sentences, but never tells us what, specifically, “many” means.  Does it mean 500?  10,000?  2,000,000?  10,000,000?   Out of 330,000,000.  Inquiring minds want to know.

This author is hardly the first to dragoon the amorphous word “many” to make it seem that he has a point without doing anything like the work needed to establish (or even seriously argue) that point, but the fact that he merely follows in a long line of facile arguments doesn’t make his any better.