U.S. v. Marshall
of
civilized society. Judges who in other respects have seemed quite similar, such
as Holmes and Cardozo, have taken opposite sides of this issue. Neither approach
is entirely satisfactory. The first buys political neutrality and a type of
objectivity at the price of substantive injustice, while the second buys justice
in the individual case at the price of considerable uncertainty and, not
infrequently, judicial willfulness. It is no wonder that our legal system
oscillates between the approaches. The positivist view, applied unflinchingly to
this case, commands the affirmance of prison sentences that are exceptionally
harsh by the standards of the modern Western world, dictated by an accidental,
unintended scheme of punishment nevertheless implied by the words (taken one by
one) of the relevant enactments. The natural law or pragmatist view leads to a
freer interpretation, one influenced by norms of equal treatment; and let us
explore the interpretive possibilities here.
One is to interpret
"mixture or substance containing a detectable amount of [LSD]" to exclude the
carrier medium--the blotter paper, sugar or gelatin cubes, and orange juice or
other beverage. That is the course we rejected in United States v. Rose, supra,
881 F.2d at 388, as have the other circuits. I wrote Rose, but I am no longer
confident that its literal interpretation of the statute, under which the
blotter paper, cubes, etc. are "substances" that "contain" LSD, is inevitable.
The blotter paper, etc. are better viewed, I now think, as carriers, like the
package in which a kilo of cocaine comes wrapped or the bottle in which a fifth
of liquor is sold.
Interpreted to exclude the carrier, the punishment schedule for LSD would make
perfectly good sense; it would not warp the statutory design. The comparison
with heroin and cocaine is again illuminating. The statute imposes the five-
year mandatory minimum sentence on anyone who sells a substance or mixture
containing a hundred grams of heroin, equal to 10,000 to 20,000 doses. One gram
of pure LSD, which also would trigger the five-year minimum, yields 20,000
doses. The comparable figures for cocaine are 3250 to 50,000 doses, placing LSD
in about the middle. So Congress may have wanted to base punishment for the sale
of LSD on the weight of the pure drug after all, using one and ten grams of the
pure drug to trigger the five-year and ten-year minima (and corresponding maxima--twenty
years and forty years). This interpretation leaves "substance or mixture
containing" without a referent, so far as LSD is concerned. But we must remember
that Congress used the identical term in each subsection that specifies the
quantity of a drug that subjects the seller to the designated minimum and
maximum punishments. In thus automatically including the same term in each
subsection, Congress did not necessarily affirm that, for each and every drug
covered by the statute, a substance or mixture containing the drug must be
found.
The flexible interpretation that I am proposing is decisively strengthened by
the constitutional objection to basing punishment of LSD offenders on the weight
of the carrier medium rather than on the weight of the LSD. Courts often do
interpretive handsprings to avoid having even to decide a constitutional
question. Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 2241, 104
L.Ed.2d 923 (1989).