Icing Out Justice: A criticism on the ice and mixture methamphetamine federal sentencing guidelines

When a court imposes a sentence, we, as a society, like to think that the sentence fits the crime, meaning it is neither too harsh nor too lenient. Stated differently, we assume that there will be fairness in sentencing. But the U.S. struggles to achieve that fairness, and that’s especially true when it comes to disparities in drug sentencing, including the sentences for ice and mixture methamphetamine.

Sentences should punish defendants proportionally to the crime committed. As such, lawmakers established sentencing guidelines to guide federal judges during sentencing. Under 18 U.S.C. § 3553(a), the guidelines ensure (or should ensure) that sentences are “sufficient but not greater than necessary.” These guidelines ultimately give judges the range of punishment for a sentence based on a variety of factors. For drug offenses, the guidelines primarily focus on the type and quantity of the drug in question.

Federal sentencing guidelines are not immune to criticism. Perhaps the greatest such critique in recent memory comes from the case of Kimbrough v. United States (2007). In Kimbrough, the Supreme Court struck down the powder cocaine and crack cocaine sentencing guidelines as unconstitutional. The impetus behind the Court’s decision to rescind the guidelines involved its determination that powder cocaine and crack cocaine were essentially the same drug. Due to this, sentences in accordance with the previous guidelines for powder cocaine and crack cocaine would be greater than necessary.

After such clear repudiation by the Supreme Court, one might expect Congress to ensure that the other guidelines were not similarly unconstitutionally constructed. Enter the pure methamphetamine, hereinafter referred to as “ice,” and methamphetamine mixture sentencing guidelines. The guidelines for methamphetamine are unconstitutionally harsh and must be completely reworked. Currently, courts impose sentences that are 10 times harsher for ice than for methamphetamine mixture. On the surface, these guidelines seem fine. One might assume that ice and methamphetamine mixture are different substances and should be treated differently. But that assumption does not comport with the reality of the modern meth drug trade.

When Congress passed the guidelines, many believed that meth became diluted as it went down the drug dealing chain. The guidelines are based on the presumption that methamphetamine mixture is only 10 percent pure. In fact, the methamphetamine mixture that was sold at the bottom of the chain in 1995 was only 54 percent pure, which was at least somewhat consistent with the presumption under the guidelines.

But, since 2013, meth has been at least 90 percent pure. Clearly, the meth trade has changed drastically since 1995. The increased purity of basic methamphetamine mixture means that little difference exists between ice and mixture: merely an average of a five percent purity difference.

Courts are already picking up on the unfair disparity in the federal sentencing guidelines between ice and mixture methamphetamine.

This new reality of enhanced methamphetamine mixture purity has not gone unnoticed by the courts. In United States v. Rodriguez (2019), the District Court of Alaska dedicated the entire order to highlighting concerns regarding the current methamphetamine sentencing guidelines. The court noted the trend toward increased purity in all methamphetamine throughout North America. Id. at 896. In Alaska, officials almost always test meth for purity.

Due to such stringent testing standards, nearly every individual convicted of methamphetamine possession faces sentencing based on the higher guideline, because the purity will place it in the ice category. Such a result conflicts with the goals of the sentencing guidelines because it does not reflect culpability or an enhanced responsibility in the drug operation, but merely that testing occurred in those cases. The District Court of Alaska recognized that enhanced purity in no way indicates an individual’s role in a drug enterprise. Methamphetamine mixture is almost just as pure as ice. The guidelines creating a distinction based on purity is completely arbitrary and overly harsh.

The increased purity renders the distinction between ice and methamphetamine mixture meaningless. This meaninglessness is comparable to that of the now-rejected distinction between crack cocaine and powder cocaine. In Kimbrough, the Supreme Court noted that there really was no significant difference between crack cocaine and powder cocaine. Similarly, the main difference between ice and methamphetamine mixture was the enhanced purity of ice.

Because a significant difference no longer exists between purity levels, ice and mixture methamphetamine cannot and should not face such different treatment.

The contrast in effects of usage are normally tied more to different purity levels than anything else. But, as noted above, there is no longer a significant difference between purity levels for ice and mixture methamphetamine. As such, ice and mixture have become drugs that result in similar effects on the user. In light of Kimbrough, ice and mixture cannot and should not be subject to such different treatments. Individuals should not face sentences 10 times more harsh for a drug that is functionally the same. Ice and mixture are essentially the same drug, and laws should treat them as such.

Modern realities demand that courts overturn the guidelines for meth. So does the background behind the passage of the guidelines. When Congress passed the original protocol, the Sentencing Commission did not undergo the normal extensive, empirical process typically employed when establishing sentencing guidelines. Rather, Congress and the Sentencing Commission rushed forward to establish guidelines after receiving public pressure following the overdose death of a celebrity.

Public outrage prompted Congress to act quickly, and those actions drove the flawed methamphetamine guidelines in place today. Congress elected to base sentences on the type and quantity of drugs, and the Sentencing Commission followed suit. The Sentencing Commission’s decision to use “drug type and quantity as a proxy for criminal role” resulted in a sad reality where courts treat low-level suppliers as kingpins. The Supreme Court noted this faulty foundation for the guidelines in Kimbrough.

Congress’ current sentencing guidelines for methamphetamine resulted from a rash decision and an outdated assumption, and must be reworked — either by Congress or by the courts.

Under political pressure, Congress made a rash decision when it created guidance for drug sentencing. Congress should avoid rash decisions in general, but that’s particularly important when deciding how many years a person will have to live without freedom. The guidelines were based on an outdated assumption about the purity of methamphetamine mixture, and attempted to replace quantity for the person’s role in an enterprise. Clearly, both of these justifications behind the guidelines have been shred to pieces by reality and changing methamphetamine purity.

In order to avoid another stinging rebuke like Kimbrough, Congress should revise the sentencing guidelines for ice and mixture methamphetamine. This revision should eliminate the court’s mandate to base sentences on purity. Instead, sentences should focus on the criminal role and culpability, which should have been the focus from the beginning. If Congress fails to do this, then the courts must step up. Specifically, they should refuse to apply the faulty guidelines in cases involving methamphetamine. Justice cannot be served if individuals are being sentenced based on illogical and arbitrary guidelines.