Methamphetamine, commonly known as “meth”, is a highly addictive and potent stimulant drug that can have devastating effects on individuals and communities. It was made a Schedule II controlled substance in 1970. In light of the serious harm caused by methamphetamine, the criminal justice system has taken a strong stance against methamphetamine trafficking. When methamphetamine dealers are arrested they face stiff penalties designed to punish the offender and deter recidivism. In determining appropriate punishment, courts must consider a range of factors, including the weight of the controlled substance, a defendant’s prior criminal history, adjustments such as the defendant’s role in the drug organization, and other relevant circumstances. However, one factor – the purity of methamphetamine – has been given disproportionate emphasis in determining punishment when purity is not a proxy for culpability.
The United States Sentencing Guidelines use a two-tiered system to set the base offense level for prosecuting a methamphetamine distribution case. One tier establishes a base offense level for high-purity methamphetamine known as “actual methamphetamine” while the other tier sets the level for “mixtures” which are substances containing a detectable amount of methamphetamine. As you might expect, defendants prosecuted for distribution of actual methamphetamine get longer sentences than defendants caught with a methamphetamine mixture. The intention of this sentencing disparity is to target the most serious offenders, but its effect is to punish all offenders with the most severe penalties without regard for an individual’s actual role in the offense. This highlights the need for reform in drug sentencing laws and a more nuanced approach to addressing drug-related offenses.
Take for example a Defendant charged with Possession with Intent to Distribute 4.5 kilograms of actual methamphetamine versus a Defendant charged with distributing the same amount of a mixture of methamphetamine. Under the Statute, crimes involving pure methamphetamine trigger a ten-year mandatory minimum penalty at 50 grams, while crimes involving a methamphetamine mixture trigger a ten-year mandatory minimum penalty at 500 grams. This is commonly referred to as the 10:1 purity ratio from the mandatory minimum penalties contained in 21 U.S.C. § 841(b)(1). With no prior criminal history, the first Defendant with actual methamphetamine has a base offense level of 38 (235 – 293 months of imprisonment) while the second Defendant with a mixture has a base offense level of 32 (121 – 151 months of imprisonment). That is a 9 ½ year difference at the low end of the guideline range or a 94 percent increase in the sentence due solely to the purity of the methamphetamine.
The concept of drug purity plays a critical role in drug-related offenses. The reason behind increasing a defendant’s sentence based on drug purity is rooted in the fact that controlled substances are often cut and diluted with other substances as they pass from wholesaler to regional distributors to street-level dealers. In devising the Guidelines, the Sentencing Commission took into account that a defendant in possession of a controlled substance of very high purity is an indication of the defendant’s significant involvement in the criminal organization and proximity to the source of the drugs. “The point, then, of increasing a defendant’s sentence based on drug purity is to punish defendants who have prominent roles in drug distribution.” United States v. Ibarra-Sandoval, 265 F. Supp. 3d 1249, 1255 (D.N.M. 2017). However, the assumption made by the Sentencing Commission regarding the correlation between methamphetamine purity and a defendant’s criminal role is not supported by real-world evidence. In fact, this assumption potentially leads to serious miscarriages of justice. As Ibarra-Sandoval remarked, “the Commission’s assumption regarding the connection between methamphetamine purity and criminal role is divorced from reality.” 265 F. Supp. 3d 1249 at 1255.
As the court in Ibarra-Sandoval discussed, “The average purity of methamphetamine today is over 90 percent. This means that the sentencing Guidelines would treat the average individual convicted of a crime involving methamphetamine as a kingpin or leader, even though that simply is not true.” Id. at 1255–56. In United States v. Bean, 371 F. Supp. 3d 46, 52–53 (D.N.H. 2019) the court stated, “In the current market, the purity of methamphetamine does not necessarily reflect a defendant’s role in the distribution chain. Low-level street dealers are just as likely as so-called ‘kingpins’ to have access to, and be charged with distribution of, extremely pure methamphetamine. In effect, then, the purity-based methamphetamine guidelines are treating all defendants as kingpins, even though that is not necessarily true.”
Trends have shown that the price per pure gram of methamphetamine has steadily decreased while the purity has increased. From 2011 to 2016, the average purity of one gram of methamphetamine has ranged from a low of 85.5 percent in early 2011 to almost 95 percent in early 2014, and for the third quarter of 2016, averaged 93.5 percent pure. See, United States v. Nawanna, 321 F.Supp.3d 943, 951 (N.D. Iowa 2018). “Today, most methamphetamine seized at all distribution levels is remarkably pure, which means that higher purity is not a good indicator of a defendant’s place in the chain of distribution.” United States v. Siddoway, 2023 WL 2246705, at *3 (D.Idaho, 2023). Today, a low-level street dealer would be distributing methamphetamine that would be similar in purity to the methamphetamine that came from the top of the supply chain.
The Nawanna court found that “because today’s methamphetamine is substantially pure, purity is not a proxy for relative culpability.” 321 F.Supp.3d at 951. The Nawanna court noted “that there was once some truth to the Commission’s assumption that large quantities are associated with high purities, because methamphetamine was cut as it worked its way down to the street-level dealer or user, but that is no longer the case.” Id. The Nawanna court concluded that “because of the generally very high purity of methamphetamine available today at all levels of the distribution chain, virtually all defendants today face enhanced punishment for a factor present in virtually all methamphetamine cases, not enhanced punishment based on individualized determinations, making the Guidelines purity enhancement excessive.” Id. at 954.
The current Guidelines for methamphetamine have proven to be ineffective in achieving its intended goal of targeting high-level drug distributors. Instead, they recommend harsher penalties for all individuals involved in the distribution of methamphetamine, regardless of their level of involvement. The Guideline’s reliance on drug purity as a factor for determining an individual’s role within the organization is outdated and irrelevant in today’s drug landscape. As a result, the Guidelines recommend more severe punishments for all offenders based on the drug’s purity without taking into account each participant’s role in the offense.
The Federal Statute, 21 U.S.C. § 841(b)(1), should be amended to abolish arbitrary minimum sentences ascribed to actual methamphetamine. Minimum statutory sentences restrict a court’s ability to fashion a sentence that takes into account a defendant’s unique relevant circumstances and role in the offense. Furthermore, the United States Sentencing Guidelines should be updated to reflect that purity is no longer a proxy for culpability. The Guideline for methamphetamine mixtures should be applied regardless of the purity of the methamphetamine possessed.
It certainly does seem that purity should be taken into account prior to sentencing.