In Drug Sentences, Guesswork Often Plays Heavy Role
Authorities Use Varying Tools To Calculate How Much Criminals Wanted to Make

            On May 9, 1998, police and their dogs chased Elizabeth Cronan into a wooded area near an abandoned house in Pace, Fla., where she was living.  They discovered the former dental assistant with about two grams of methamphetamine, or speed, in her pocket.

            That crime alone would lead to only a short prison term.  But investigators determined from testimony by Ms. Cronan’s co-conspirators that her group had used the old house as a drug lab and produced about 340 grams of speed.  Added to other elements of the case, she was now looking at 10 to 13 years.

            Then came the topper.  Police searching the car of a conspirator found an empty one-pound can of red phosphorous, a chemical found in kitchen matches that is used by drug dealers to cook up speed.  A Florida state chemist wrote a report estimating that the phosphorous could yield more than 2,200 grams, or about five pounds, of highly purified methamphetamine.  Based on the report, a judge sentenced Ms. Cronan, a first-time offender who is now 45 years old, to 28 years in prison.

            Under 1987 federal sentencing guidelines and other federal laws, the amount of drugs involved in a crime is crucial.  The guidelines mandate tough sentences for people accused of trafficking in large amounts of drugs, which is why slightly more than half of the nation’s 180,000 federal prisoners are behind bars for drug offenses.  The goal of the guidelines is to standardize sentences, so that criminals dealing in the same amount of drugs get roughly the same sentence. 

            But when it comes to measuring the weight of drugs, procedures around the country are anything but standard.  The amount of cocaine or marijuana in the defendant’s possession is just the start: What really matters is how much a person intended to procure or produce.  That question leads the justice system into a speculative realm where botanists, chemists and forensic scientists imagine what might have happened if the defendant had had more time or skill.

            The government is “very arbitrary in the way they are calculating yields that aren’t based on any scientific foundation,” says Warren James Woodford, an independent research biochemist who has testified about drug yields in many federal cases, often for the defense. 

            Prosecutors and defense lawyers have debated, for example, whether a man who hoarded bags of Chinese tea could have made a significant quantity of speed from it were he an expert chemist- which he wasn’t.  Another man was caught growing thousands of baby marijuana plants.  Had they grown up, how much marijuana would they have yielded?  The answers to such questions can mean the difference of a decade or more in a prison sentence.

            The Supreme Court is now weighing whether the federal sentencing guidelines are constitutional.  Currently, criminals’ sentences can be boosted based on evidence not heard by a jury or admitted to by a defendant.  The high court has already ruled unconstitutional a similar system in Washington state.

            If the federal guidelines have to be scrapped, the art of measuring might become even more critical.  That’s because some criminal- justice officials and members of Congress, anticipating the high court’s ruling, have suggested boosting congressionally mandated minimum and maximum sentences based on the amount of drugs being trafficked.

            Even under current law some sentences are already congressionally fixed in this way.  The first such law, passed in 1986 after the cocaine-related death of basketball star Len Bias, sets a five-year minimum sentence for anyone trafficking in more than five grams of crack cocaine.  According to U.S. Sentencing Commission data, more than 94,000 defendants were sentenced under mandatory minimum drug laws from 1996 to 2002.

            Samuel J. Hester was working as a farmer and landscaper in Morgan County, Ga., in 1992 when an informant told local authorities about a marijuana- growing operation in the area.  Officers raided a barn of one of the co-conspirators and found immature marijuana plants growing inside.  Mr. Hester was implicated as the organizer.

            While small amounts of mature marijuana were found during the investigation, the bulk of the case rested on the 2,924 plants inside the barn.  At 6 to 8 inches each, they were too young to determine if they were male or female.  Only female plants produce the drug. 

            According to the version of the federal sentencing guidelines then in effect, each of the plants attributed to Mr. Hester’s growing operation, regardless of gender, was treated as if it could produce 1,000 grams of marijuana, about 2.2 pounds.  Based on that figure, prosecutors calculated that Mr. Hester could eventually have produced several tons of marijuana.  Combined with other factors, including a previous state drug conviction, Mr. Hester was sentenced to nearly 22 years in 1994.

            Unbeknownst to Mr. Hester, a researcher at the University of Mississippi had conduced a study in 1992 on behalf of the Drug Enforcement Administration to determine how much marijuana a plant could actually produce.  In optimal conditions outdoors, he found that the female plants on average produced only 215 to 274 grams, a quarter of the previous estimate enshrined in federal law.

            Based on that study and other data, the U.S. Sentencing Commission decided in 1995 to reduce the amount of marijuana that one plant can theoretically produce to 100 grams from 1,000.  The commission applied the change retroactively, allowing people already in prison to challenge their sentences.

            Unfortunately for Mr. Hester, his crime also triggered a congressionally mandated minimum based on the old marijuana yield formula.  Congress hadn’t changed its law.  Instead of having his sentence cut to around 11 years, Mr. Hester saw his time reduced only slightly to 20 years.

            The case went as high as the Supreme Court in 2000 and back to a lower court, but ultimately to no avail.  Mr. Hester, now 59 years old, remains in prison in Talladega, Ala., and his lawyer, Courtland Reichman, says he’s run out of options.  Congress still hasn’t changed the law.

            James Rosacker had better luck in the measuring game.  Mr. Rosacker, a high school dropout and trucker, was living with his mother in Yamhill County, Ore., when she discovered a drug lab in a shed on her property.  She told authorities, and Mr. Rosacker was arrested in February 2001.

            Law-enforcement officers from several agencies swarmed the rundown shed.  Everywhere they looked, they found Ma Huang tea.  There were 26 plastic bags inside the shed, each with one pound of the tea plant, and a five-gallon plastic bucket with brewed tea.  A search of the house netted more of the same.  Inside Mr. Rosacker’s pickup truck officers found a book entitled “Secrets of Methamphetamine Manufacture,” written by “Uncle Fester.”

            Mr. Rosacker admitted he wanted to make speed and had been hoarding Ma Huang tea, which contains the stimulant ephedra.  This is chemically similar to pseudoephedrine, a precursor of speed.  However, chemists say it would be extremely difficult to extract pure pseudoephedrine from the tea, and without the pure chemical it wouldn’t be possible to make speed.  Aside from his study of “Uncle Fester,” Mr. Rosacker had little experience in chemistry.  He pled guilty to illegal use of a communication device, because he had used a telephone as he assembled his drug lab.  He expected to spend a year in prison.

            Prosecutors weren’t persuaded.  Citing a one-page analysis from the Oregon State Police Forensic Laboratory, they argued that if Mr. Rosacker could have continued operating his lab without his mother’s prying eyes, he would have been able to produce 80 grams of methamphetamine.  The district judge handed down the maximum sentence the law allowed for that amount of drugs, four years.

            In an appeal, defense attorney Michael Levine argued that Mr. Rosacker’s conviction was based on several erroneous laboratory assumptions, including how much ephedra the tea contained.  The Ninth Circuit Court of Appeals overturned the sentence, and Mr. Rosacker was eventually released after serving 20 months.

            The stiff punishments for crack cocaine are one area in which the arbitrariness of how drugs are weighed has already raised widespread public debate.  African-American and other groups say the system unfairly favors suburban white drug users who tend to prefer cocaine in its powder form.  Powder cocaine is punished less severely.  While a person with five grams of crack automatically faces a minimum five-year sentence if sentenced in a federal court, someone with the same amount of powder cocaine faces only about a year in prison under federal rules.

            One result of the crack laws is that tiny differences in the weight of drugs can mean a difference of several years or more in a prison term.  Erika O’Leary ran away from home at the age of 12.  She spent eight years sleeping in shelters or on the streets of Portland, Maine, where she became a crack addict.  In December 2003, lured by the promise of drugs, she became the go-between for a local trafficker and a customer.

            The buyer happened to be an undercover DEA officer.  Ms. O’Leary was arrested and charged with selling 5.2 grams of crack.  The dealer who provided the drugs cooperated with prosecutors and testified against her.  His reward: a sentence of 31 months.  Ms. O’Leary knew little about the operation and had no value as a cooperating witness.  At first she was treated as if her crime was minor: She was released on bond to attend free drug treatment.

            But Ms. O’Leary was still facing nearly six years in prison- the five- year crack minimum plus additions due to juvenile offenses.  Her lawyer, Richard Berne, couldn’t seek to get the charge downgraded from distribution to simple possession, because crack is the only drug in the federal system where possession triggers the same mandatory minimum penalty as trafficking.

            So Mr. Berne tried an ambitious gambit: He asked that the crack cocaine in the case be reweighed on the chance that the scale originally used was off.  The maneuver had some precedent: In the 1990s Judge Stanley Sporkin in Washington, D.C., had ordered prosecutors to reweigh drugs in two borderline cases, leading to reduced sentences.  Mr. Sporkin, now in private practice, says such reweighing should be a routine defense request.

            In Maine, prosecutors balked at Mr. Berne’s request, arguing that evaporation could have lowered the weight.  U.S. District Court Judge D. Brock Hornby allowed Mr. Berne to go ahead.  Prosecutors then relented.  Rather than weigh the evidence again, they assented to stipulating in a plea-bargain agreement with Ms. O’Leary that she had trafficked 4.9 grams of crack.  Judge Hornby sentenced her on Sept. 29 to two years and 11 months in prison, half of what she would have otherwise spent.

            In Florida, Ms. Cronan, the former dental assistant who was caught with speed in her pocket, hoped for a similar second chance.  At issue in her case was how much speed her drug-cooking team made.  Defendants cooperating with the government said it was about 340 grams - an amount Ms. Cronan didn’t dispute.

            But there was also the empty one-pound can of red phosphorous found in the car of one of her confederates.  Ms. Cronan’s probation officer, whose job is to help the judge figure out the sentence, pointed out that the amount of speed her team produced might also be calculated by figuring out how much speed could be made from a pound of red phosphorous.  The red phosphorous is used as a kind of cooking agent to create methamphetamine from several ingredients including pseudoephedrine.

            The probation officer’s report then turned to an analysis by a chemist, whom it didn’t name, at the Florida Department of Law Enforcement.  The chemist estimated that one pound of red phosphorous “would conservatively produce more than five pounds of methamphetamine at 90% purity.  One pound of red phosphorous therefore, equates to at least 2,268 grams of ‘Ice,’” a purer form of speed that carries more severe sentencing.  On the strength of the report, the judge handed down a 28- year sentence in September 1998.

            At that time, red phosphorous was not included in the federal sentencing guidelines as a prohibited substance.  But it was added last year.  According to the new guidelines, it should be assumed that a person who possesses one pound of red phosphorous intends to make 323.9 grams of methamphetamine.  That is almost identical to the amount Ms. Cronan and her confederates admit to having actually made- and it suggests that the Florida state chemist was off by a factor of seven.

            Ms. Cronan’s current lawyer, Donald Bergenson, asked for a retrial, arguing that Ms. Cronan’s lawyer should have contested the chemist’s calculation.  A district- court judge rejected the motion.  Ms. Cronan’s last hope- a distant one- is that the Supreme Court will overturn the federal guidelines and make the ruling retroactive so that older cases such as hers can be resurrected.  Otherwise, she is scheduled to be released no earlier than 2022.