Levon Dumont, a free-spirited Santa Cruz teen-ager whose principal passion was the Grateful Dead, was on his way to a concert on Sept. 14, 1989, when he was stopped by an undercover agent at the Milwaukee airport.
Dumont's bag was searched, and agents found about three grams of LSD, an illegal hallucinogen. Today, Dumont is serving a 15-year, 8-month sentence at the Federal Correctional Institution in Sheridan, Ore.
Five years are for the three grams of LSD; the rest, more than a decade, is for the 440 grams of paper on which the drug was carried.
"I could have understood five years," said Connie Dumont, Levon's mother, a Santa Cruz real estate agent. "But 15 years? They took the best part of his life away because of this absurd decision to weigh the paper."
Levon Dumont could not agree more. "It has a daily, gut-wrenching effect," he said of the decision. "The time is unfathomable."
Cases like Dumont's are cropping up regularly in federal courts across the United States. And as LSD arrests soar, hundreds of offenders are forfeiting decades of their lives to a vaguely worded sentencing law that determines how the drug is weighed and how long dealers serve in prison.
Despite withering criticism of that law--the Anti-Drug Abuse Act of 1986--and deep uncertainty about what Congress intended when it approved it, the U.S. Supreme Court voted last year to let it stand, a decision that allowed the government to include the weight of paper or other so-called LSD "carriers" when determining prison sentences. The consequences of that ruling, Justice John Paul Stevens wrote in his dissent, "are so bizarre that I cannot believe they were intended by Congress."
Other critics also have assailed the law, but Congress, whose members are wary of taking any action that could ease prison sentences for drug dealers, has done nothing. Drug enforcement officers say no action is needed.
"I'm just not troubled by this at all," said Robert C. Bonner, administrator of the Drug Enforcement Administration. "There are some pretty severe penalties for trafficking in LSD, but I think that's right. This is a very dangerous drug. It once was referred to as do-it-yourself brain surgery."
The 1986 law at the center of this LSD debate was one of a slew of statutes enacted by Congress to set mandatory minimum prison sentences for crimes involving drugs. There is no parole in federal prison, so criminals serve all but a fraction of their assigned time.
The introduction of mandatory minimums and sentencing ranges were intended to deter drug crimes and to eliminate the possibility that criminals could appeal to lenient judges. Although those innovations are praised by drug enforcement advocates, they have come under fire from civil libertarians, lawyers and judges, among others.
"It's a dehumanizing aspect of the justice system," said U.S. District Judge Terry J. Hatter Jr. "We're dealing with numbers instead of people."
And even among those who support the mandatory minimums and sentencing guidelines, many concede that LSD cases pose a unique problem because of the way the law directs that drugs be weighed.
Under the sentencing rules, prison time for drug felons is based on the weight of the "mixture or substance containing a detectable amount" of most illegal drugs. The more that mixture weighs, the longer the prison term.
In cocaine or heroin cases, using the full weight of the mixture keeps dealers from escaping long prison sentences by diluting their drugs with cutting agents. That is part of what the federal government calls the "market approach" to fighting drug crimes.
In LSD cases, however, that approach produces a different result. LSD is sprayed on paper--or sometimes dropped into sugar cubes or orange juice or gelatin--in order to be consumed. Those so-called "carriers" do not dilute the drug or boost the dealer's profits.
Yet under the Supreme Court's interpretation of the federal sentencing laws, the paper or sugar cubes are considered part of the mixture containing LSD. As a result, judges must include the weight of those substances when determining how long to imprison an LSD offender.
The results can be startling.
Take the case of Stanley Marshall, a soft-spoken young man from El Paso, Tex., who was arrested June 22, 1988. He was charged with leading a conspiracy to distribute LSD. The total amount of the drug seized from him amounted to less than a gram. It was impregnated on about 113 grams of paper, however, so Marshall was charged with conspiracy to distribute 113.3 grams of LSD.
Had he been sentenced based on the amount of pure LSD he distributed, Marshall would have spent about three years in prison. Instead, he was sentenced to 20 years. Marshall was 30 when he was arrested. If all goes well and he gets the maximum number of days off for good behavior, he will be 47 when he goes free.
"I was breaking the law, I admit that," Marshall said in a telephone interview from prison in Colorado. "But there's no logic to the way they treat these cases. . . . The drug war is a war on people, and I'm one of those people."
Marshall's sentence means that he will be in prison roughly twice as long as Jose Cabrera, a convicted cocaine importer who the government estimates made more than $40 million in the drug business. Cabrera had been sentenced to life plus 200 years for his crimes, but he had an important advantage over Marshall: Cabrera knew Manuel Noriega, and he agreed to testify against him.
As a result, Cabrera's sentence was cut to nine years because the guidelines allow prosecutors to ask for a reduction if a defendant provides "substantial assistance" in another case.
"The people at the very bottom who can't provide substantial assistance end up getting the worst sentences," Hatter said. "That means that we end up punishing these people at the bottom of the drug business more severely than those at the top."
Julie Stewart, director of the Washington-based Families Against Mandatory Minimums, agrees. "The lesson is: If you're going to engage in drug activity, be a kingpin."
And yet, as severe as Marshall's sentence was, it could have been much worse. If he had put his 0.67 gram of LSD in sugar cubes or in a bowl of orange juice instead of on paper, he could have been sentenced to life without parole in federal prison, a stiffer sentence than Noriega received.
Marshall's case was heard by the U.S. 7th Circuit Court of Appeals, where he lost by a 6-5 vote. In dissent, the five judges wrote: "A pint of orange juice containing one dose of LSD is not more, in any relevant sense, than a quart of juice containing the same one dose, and it would be loony to punish the purveyor of the quart more heavily than the purveyor of the pint."
The majority ruled that the guidelines do not impose cruel and unusual sentences, and "criminals have neither a moral nor a constitutional claim to entirely proportional treatment."
DEA chief Bonner agrees.
"You don't necessarily end up with a perfect system or one that is perfectly equitable at all times," he said. "It is possible that someone who is retailing LSD could end up doing more time than someone who is trafficking in it wholesale."
In fact, criminals who are caught with liquid LSD--the most concentrated form of the drug and the one most likely to be carried by large wholesalers of the drug--benefit by the carrier-weight sentencing law.
According to the U.S. Supreme Court, an LSD dealer who had 100 doses of the pure drug in a glass bottle--which is not subject to being weighed--would face a prison sentence of about 10 months. One who had the same amount of the drug spread onto blotter paper would face imprisonment of at least five years. And a third dealer who distributed 100 doses of LSD in sugar cubes would go to prison for no less then 15 years.
Including the weight of the blotter paper also means that LSD criminals often get stiffer sentences than heroin or cocaine offenders, despite the medical consensus that those drugs are more dangerously addictive.
In Marshall's case, he received a 20-year sentence for conspiring to distribute 11,751 doses of LSD. To get the same sentence in a heroin case, a dealer would need to have enough of that drug to produce between 1 million and 2 million doses.
"This is a major blemish in the judicial system," said Donald Bergerson, Marshall's lawyer. "It just does not make any sense."
Although drug enforcement advocates do not defend the harsher penalties given to LSD offenders than some cocaine and heroin traffickers, the solution, they say, is not new federal laws.
"There's an easy way to avoid this problem," Bonner said, "and that is not to deal or traffic in LSD. You know what they say: If you can't do the time, don't do the crime."
That answer does not satisfy critics of the sentencing law, and they are waging a persistent campaign to have it changed. They have found some support--Sen. Edward M. Kennedy (D-Mass.) and Sen. Joseph R. Biden Jr. (D-Del.) have proposed changes in the law, but their proposed amendments were not approved. Likewise, Rep. Leon E. Panetta (D-Carmel Valley) has shown interest in changing the law, but he too has found the going rough.
"He does feel that the guidelines as currently set are arbitrary and result in misapplication of the law," said Barry Toiv, a spokesman for Panetta. "He contacted the Judiciary Committee to see about the possibility of legislation, but the timing just wasn't right."
Eric Sterling, who served as counsel to the House Judiciary Committee when the 1986 sentencing laws were passed, said Congress never considered the issue of LSD and carrier weight during its debates. And despite the occasional attempts to clarify the issue, Sterling does not expect quick action.
"There's a saying on the Hill that if I have to explain the vote, it's a bad vote," said Sterling, who is the president of the Criminal Justice Policy Foundation, a Washington think tank. "Generally, there is just enormous panic among members whenever there's anything that can be construed as being soft on drugs."
Meanwhile, Levon Dumont plays chess, does chin-ups and reads the works of existential philosophers. And Stanley Marshall makes 22 cents an hour working in the prison library, dreaming of where he will pick up with his life when he leaves prison, probably sometime in 2005.
"I'm trying to think about doing my probation and getting a job," Marshall said. "Then I want to get a passport and move to Europe. That's my goal, getting to a place where people are a little more tolerant."
Doing Time for LSD
The amount of prison time that a person convicted of an LSD offense will serve depends almost entirely on the weight of the material that is used to carry the drug, not on the weight of the drug itself.
For example, 100 doses of LSD weigh about 5 milligrams, enough to justify about a year in prison under federal sentencing guidelines. The same amount of LSD, dispersed in sugar cubes, can result in a sentence of nearly 20 years.
WEIGHT OF CARRIER 100 DOSES GUIDELINE RANGE Pure LSD 5 milligrams 10-16 months Gelatin capsule 225 mg. 2 1/4-2 3/4 years Blotter paper 1.4 grams 5 1/4-6 1/2 years Sugar cube 227 grams 15 1/2-19 1/2 years
LSD VS. COCAINE OR HEROIN
One other result of including the weight of carrier material is that LSD offenses are punished much more severely than cocaine or heroin crimes, even though those drugs are considered much more dangerously addictive.
* The sentence for one defendant who sold 12,000 doses of LSD was 20 years in federal prison.
* To receive a sentence of 20 years in prison for selling heroin, a person would have to sell 10 kilograms, enough for 1 million to 2 million doses.
* To receive a sentence of 20 years in prison for selling cocaine, a person would have to sell 50 kilograms, enough for 325,000 to 5 million doses.
Source: Chapman vs. United States, U.S. Supreme Court case No. 90-5744. Majority opinion by Chief Justice William H. Rehnquist, joined by six other justices. Dissent by Justice John Paul Stevens, joined by Justice Thurgood Marshall.