Almost all controlled substances in the United States are criminalized by weight. There are thresholds that legally separate possession from distribution, or misdemeanors from felonies. Methamphetamine, however, is one of the few substances for which federal trafficking penalties vary by purity. The federal sentencing guidelines have remained largely unchanged for decades, during which time meth purity has nearly doubled.
For the first time since in nearly 25 years, the United States Sentencing Commission (USSC) published an analysis of federal meth trafficking cases and the impact of using purity to determine statutory penalties, particularly in the context of mandatory minimums. Though amphetamine, hydrocodone, oxycodone and PCP are also punished based on purity, none are punished nearly as harshly as meth.
According to the analysis released June 13, about half of all federal drug trafficking cases are related to meth. More mandatory minimum sentences are applied to meth convictions than for any other drug, partly because the thresholds are lower than for any other drug.
The first federal mandatory minimums for meth trafficking were set by the Anti-Drug Abuse Act of 1988. A minimum prison sentence of five years kicks in for “Serious” trafficking cases, and a 10-year minimum for “Major” ones.
Methamphetamine “mixture” refers to the weight of a powder sample including any filler that might have been cut into it. “Pure” or “actual” methamphetamine refers to the weight of just the meth and nothing else, i.e. however much is 100-percent pure.
In 1990, the USSC added “Ice” to the guidelines. This refers to crystal as opposed to powder, but more specifically it’s defined as having a purity of 80 percent or higher. Since the addition, USSC wrote in its new analysis, courts “have treated Ice as 100 percent pure methamphetamine and apply the mandatory minimum penalties for methamphetamine (actual) in those cases.”
Mandatory minimums for meth “mixture” versus “pure” meth are enforced 10:1. So the five-year mandatory minimum, for example, would be triggered by 50 grams of “mixture.” But if it’s considered “Ice,” it’d only take 5 grams.
A sample’s purity can be legally established through laboratory testing, but it doesn’t have to be. Eyewitness testimony is actually enough sometimes.
The USSC report reviewed samples that had been sentenced as “mixture” versus “pure” versus “Ice.” All three categories averaged over 90-percent pure.
Of course, the people sentenced to years extra prison time this way don’t have extra-pure meth. They just have the meth that happened to get tested. There’s no national standard for when prosecutors get these samples tested or why.
Though in the mid-’90s notorious sentencing disparities for crack cocaine were finally reduced, the meth sentencing guidelines have never been meaningfully amended. Meanwhile, the meth supply has averaged over 90-percent pure since around 2011. It takes 500 grams of powder cocaine to trigger a five-year mandatory minimum sentence. It takes 28 grams of crack cocaine. It takes 5 grams for meth, if the meth is deemed pure.
In recent years, a growing number of federal judges have noted that the unlike the sentencing guidelines for other banned drugs, the meth guidelines were not based on any empirical data. There is no evidence that supports harsher punishments based on purity, and no legislative precedent that explains why the USSC proceeded this way.
“The issue is fairly straightforward. The US Sentencing Guidelines use drug purity as a proxy for a defendant’s culpability,” US District Judge Carlton Reeves stated in December 2022. Notably, he’d been appointed the new chair of the USSC a few months earlier. The 2024 amendments left the purity enhancements alone, but efforts might have more traction next year.
Top image and inset graphics via United States Sentencing Commission