Abstract

The current "war on drugs" began in the 1980s, when Congress passed stiff mandatory minimum drug sentences and created the federal Sentencing Guidelines. Since then, the average federal drug sentence has more than doubled and the number of federal prisoners incarcerated for drug offenses has grown by more than 400%. And despite frequent criticism of these drug sentences, drug war policy-makers remain devoted to incarceration. Yet prosecutors-the front-line soldiers in this war-may be less devoted to stiff prison sentences than the policy-makers in Washington. Indeed, in many federal prosecutors' offices, uniformity (at least the kind of uniformity envisioned by the federal Sentencing Guidelines) is a myth. In some federal districts, the drug defendant who is given the sentence mandated by the Guidelines is the exception rather than the rule. This Article will first summarize the extent to which drug sentences fall below the mandatory minimums established by statute and outside the ranges established by the Sentencing Guidelines. The argument from these statistics will be two-fold. First, the disparity in federal drug sentences (both within districts and across districts) demonstrates the dysfunctional nature of the federal drug sentencing system. Second, and somewhat inconsistently, the Article will argue for more disparity. In particular, I will argue that-at least until Congress fixes the dysfunctional system of mandatory minimums and related Guidelines- federal prosecutors should give more defendants the opportunity to receive a reduced sentence by cooperating with the authorities.