Chapman v. United States (500 U.S. 453)/Dissent Stevens

Justice STEVENS, with whom Justice MARSHALL joins, dissenting.

The consequences of the majority's construction of 21 U.S.C. § 841 are so bizarre that I cannot believe they were intended by Congress. Neither the ambiguous language of the statute, nor its sparse legislative history, supports the interpretation reached by the majority today. Indeed, the majority's construction of the statute will necessarily produce sentences that are so anomalous that they will undermine the very uniformity that Congress sought to achieve when it adopted the Sentencing Guidelines.

This was the conclusion reached by five Circuit judges in their two opinions dissenting from the holding of the majority of the Court of Appeals for the Seventh Circuit sitting en banc in this case. In one of the dissenting opinions, Judge Cummings pointed out that there is no evidence that Congress intended the weight of the carrier to be considered in the sentence determination in LSD cases, and that there is good reason to believe Congress was unaware of the inequitable consequences of the Court's interpretation of the statute. United States v. Marshall, 908 F.2d 1312, 1327-1328 (CA7 1990). As Judge Posner noted in the other dissenting opinion, the severity of the sentences in LSD cases would be comparable to those in other drug cases only if the weight of the LSD carrier were disregarded. Id., at 1335.

If we begin with the language of the statute, as did those judges who dissented from the Seventh Circuit's en banc decision, it becomes immediately apparent that the phrase "mixture or substance" is far from clear. As the majority notes, neither the statute nor the Sentencing Guidelines define the terms "mixture" or "substance." Ante, at 461-462. The majority initially resists identifying the LSD and carrier as either a mixture or a substance; instead, it simply refers to the combination, using the language of the statute, as a "mixture or substance containing a detectable amount of the drug." See ante, at 459, 460, 461. Eventually, however, the majority does identify the combination as a mixture: "After the solvent evaporates, the LSD is left behind in a form that can be said to 'mix' with the paper.  The LSD crystals are inside the paper, so that they are commingled with it, but the LSD does not chemically combine with the paper." Ante, at 462. Although it is true that ink which is absorbed by a blotter "can be said to 'mix' with the paper," ibid., I would not describe a used blotter as a "mixture" of ink and paper. So here, I do not believe the word "mixture" comfortably describes the relatively large blotter which carries the grains of LSD that adhere to its surface.

Because I do not believe that the term "mixture" encompasses the LSD and carrier at issue here, and because I, like the majority, do not think that the term "substance" describes the combination any more accurately, I turn to the legislative history to see if it provides any guidance as to congressional intent or purpose. As the Seventh Circuit observed, the legislative history is sparse, and the only reference to LSD in the debates preceding the passage of the 1986 amendments to § 841 was a reference that addresses neither quantities nor weights of drugs. 908 F.2d, at 1327; see also 132 Cong.Rec. S14030 (Sept. 27, 1986) (statement of Sen. Harkin).

Perhaps more telling in this case is the subsequent legislative history. In a letter to Senator Joseph R. Biden, Jr., dated April 26, 1989, the Chairman of the Sentencing Commission, William W. Wilkens, Jr., commented on the ambiguity of the statute:

" 'With respect to LSD, it is unclear whether Congress     intended the carrier to be considered as a packaging      material, or, since it is commonly consumed along with the      illicit drug, as a dilutant ingredient in the drug mixture. .      . .  The Commission suggests that Congress may wish to      further consider the LSD carrier issue in order to clarify      legislative intent as to whether the weight of the carrier      should or should not be considered in determining the      quantity of LSD mixture for punishment purposes.' "  908      F.2d, at 1327-1328.

Presumably in response, Senator Biden offered a technical amendment, the purpose of which was to correct an inequity that had become apparent from several recent court decisions. According to Senator Biden, "[t]he amendment remedies this inequity by removing the weight of the carrier from the calculation of the weight of the mixture or substance." 135 Cong.Rec. S12748 (Oct. 5, 1989). Although Senator Biden's amendment was adopted as part of Amendment No. 976 to S. 1711, the bill never passed the House of Representatives. Senator Kennedy also tried to clarify the language of 21 U.S.C. § 841. He proposed the following amendment:

"CLARIFICATION OF 'MIXTURE OR SUBSTANCE.'

"Section 841(b)(1) of title 21, United States Code, is     amended by inserting the following new subsection at the end      thereof:

" '(E) In determining the weight of a "mixture or     substance" under this section, the court shall not include      the weight of the carrier upon which the controlled substance      is placed, or by which it is transported.' "  136 Cong.Rec. S7069-S7070 (May 24, 1990).

Although such subsequent legislation must be approached with circumspection because it can neither clarify what the enacting Congress had contemplated nor speak to whether the clarifications will ever be passed, the amendments, at the very least, indicate that the language of the statute is far from clear or plain.

In light of the ambiguity of the phrase "mixture or substance" and the lack of legislative history to guide us, it is necessary to examine the congressional purpose behind the statute and to determine whether the majority's reading of the statute leads to results that Congress clearly could not have intended. The figures in the Court's opinion, see ante, at 458, n. 2, are sufficient to show that the majority's construction will lead to anomalous sentences that are contrary to one of the central purposes of the Sentencing Guidelines, which was to eliminate disparity in sentencing. "Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders." U.S. Sentencing Comm'n, Federal Sentencing Guidelines Manual 1.2 (1991). As the majority's chart makes clear, widely divergent sentences may be imposed for the sale of identical amounts of a controlled substance simply because of the nature of the carrier. If 100 doses of LSD were sold on sugar cubes, the sentence would range from 188-235 months, whereas if the same dosage were sold in its pure liquid form, the sentence would range only from 10-16 months. See ante, at 458, n. 2. The absurdity and inequity of this result is emphasized in Judge Posner's dissent:

"A person who sells LSD on blotter paper is not a worse     criminal than one who sells the same number of doses on      gelatin cubes, but he is subject to a heavier punishment.  A      person who sells five doses of LSD on sugar cubes is not a      worse person than a manufacturer of LSD who is caught with      19,999 doses in pure form, but the former is subject to a      ten-year mandatory minimum no-parole sentence while the      latter is not even subject to the five-year minimum.  If      defendant Chapman, who received five years for selling a      thousand doses of LSD on blotter paper, had sold the same      number of doses in pure form, his Guidelines sentence would      have been fourteen months.  And defendant Marshall's sentence      for selling almost 12,000 doses would have been four years      rather than twenty.  The defendant in United States v. Rose,      881 F.2d 386, 387 (7th Cir.1989), must have bought an      unusually heavy blotter paper, for he sold only 472 doses,      yet his blotter paper weighed 7.3 grams-more than Chapman's,      although Chapman sold more than twice as many doses. Depending on the weight of the carrier medium (zero when the     stuff is sold in pure form), and excluding the orange juice      case, the Guidelines range for selling 198 doses (the amount      in Dean ) or 472 doses (the amount in Rose ) stretches from      ten months to 365 months;  for selling a thousand doses      (Chapman ), from fifteen to 365 months;  and for selling      11,751 doses (Marshall ), from 33 months to life. In none of     these computations, by the way, does the weight of the LSD      itself make a difference-so slight is its weight relative to      that of the carrier-except of course when it is sold in pure      form. Congress might as well have said: if there is a      carrier, weigh the carrier and forget the LSD.

been able to discern. The legislative history is  silent, and since even the Justice Department cannot   explain the why of the punishment scheme that it is   defending, the most plausible inference is that Congress   simply did not realize how LSD is sold."  908 F.2d, at   1333.

Sentencing disparities that have been described as "crazy," ibid., and "loony," id., at 1332, could well be avoided if the majority did not insist upon stretching the definition of "mixture" to include the carrier along with the LSD. It does not make sense to include a carrier in calculating the weight of the LSD because LSD, unlike drugs such as cocaine or marijuana, is sold by dosage rather than by weight. Thus, whether one dose of LSD is added to a glass of orange juice or to a pitcher of orange juice, it is still only one dose that has been added. But if the weight of the orange juice is to be added to the calculation, then the person who sells the single dose of LSD in a pitcher rather than in a glass will receive a substantially higher sentence. If the weight of the carrier is included in the calculation not only does it lead to huge disparities in sentences among LSD offenders, but also it leads to disparities when LSD sentences are compared to sentences for other drugs. See n. 12, supra ; 908 F.2d, at 1335.

There is nothing in our jurisprudence that compels us to interpret an ambiguous statute to reach such an absurd result. In fact, we have specifically declined to do so in the past, even when the statute was not ambiguous, on the ground that Congress could not have intended such an outcome. In construing a statute, Learned Hand wisely counseled us to look first to the words of the statute, but "not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F.2d 737, 739 (CA2), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). In the past, we have recognized that "frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of . . . the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). These words guided our construction of the statute at issue in Public Citizen v. Department of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989), when we also noted that "[l]ooking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention. . . ." Id., at 455, 109 S.Ct., at 2566.

Undoubtedly, Congress intended to punish drug traffickers severely, and in particular, Congress intended to punish those who sell large quantities of drugs more severely than those who sell small quantities. But it did not express any intention to treat those who sell LSD differently from those who sell other dangerous drugs. The majority's construction of the statute fails to embody these legitimate goals of Congress. Instead of punishing more severely those who sell large quantities of LSD, the Court would punish more severely those who sell small quantities of LSD in weighty carriers, and instead of sentencing in comparable ways those who sell different types of drugs, the Court would sentence those who sell LSD to longer terms than those who sell proportionately equivalent quantities of other equally dangerous drugs. The Court today shows little respect for Congress' handiwork when it construes a statute to undermine the very goals that Congress sought to achieve.

I respectfully dissent.