Weighty matters.

• Author: Sullum, Jacob

Not long ago, a 21-year-old from California, whom we'll call Joe Deadhead, attended a concert in Buffalo. Outside the concert hall, he sold 199 hits of LSD to a friend at 65 cents each, for a total of about $130. Later on, undercover DEA agents busted Joe's friend, who agreed to cooperate and fingered Joe. Posing as buyers, the agents asked Joe if he could sell them some acid. He declined, but during the conversation he admitted selling LSD to his friend.

Now Joe is really screwed. By the standards of the Drug Enforcement Administration, 199 doses is not a lot of LSD. But under current federal law, Joe's sentence will hinge not on the (negligible) weight of the drug but on the weight of the "carrier medium"--in this case, paper impregnated with LSD. The paper weighed a little more than a gram, so the law treats Joe as if he had sold a gram of LSD, or 20,000 50-microgram doses. Under the Anti-Drug Abuse Act of 1986, that means a mandatory minimum sentence of five years. Had Joe been charged under New York state law, which does not count paper as LSD, his crime would have been a Class A misdemeanor, carrying a punishment of less than a year in county jail.

The way that federal law treats LSD doesn't make much sense. Under federal sentencing guidelines, selling 100 doses of LSD in pure form triggers a minimum sentence of less than a year, but selling the same amount on paper will get you a sentence of at least two years, three months. And if you were old-fashioned enough to drop your acid onto sugar cubes, you will end up behind bars for no less than 15 years, eight months. "All this seems crazy," wrote Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, in a 1990 dissent. "To base punishment on the weight of the carrier medium makes about as much sense as basing punishment on the weight of the defendant." The consequences of this approach, Justice John Paul Stevens wrote in another dissent in the same case when it reached the U.S. Supreme Court in 1991, "are so bizarre that I cannot believe they were intended by Congress."

But the majority in Chapman v. United States gave Congress more credit--or less, depending upon how you look at it. The Court ruled that when Congress said a drug offender's punishment should be based on the weight of the "mixture or substance containing a detectable amount" of the drug, it meant to include paper, sugar cubes, and gelatin capsules--even, in the extreme case suggested by Posner, a pint of orange juice spiked with a dose of LSD.

Last spring the U.S. Sentencing Commission, the independent agency charged with filling in the details of federal criminal penalties, decided that something had to be done about the unfair results of this interpretation. Small-time LSD dealers like Joe Deadhead were going to prison for five- and 10-year...