Sentencing Reform

U.S. Attorneys Group Digs Out Every Horrible Drug War Argument to Fight Sentencing Reform

We're both winning and losing the drug war, so don't change anything!


This is your brain obsessed with the drug war.
Partnership for a Drug Free America

As Jacob Sullum has previously noted, there is strong resistance to reforming drug-related sentences and easing back on mandatory minimums from some federal prosecutors, who have become dependent on threatening to throw an entire library of books at drug offenders in order to get the cooperation of the defendants in other drug investigations and as leverage for plea deals.

In the wake of this growing bipartisan push to fix our broken federal sentencing system, the National Association of Assistant U.S. Attorneys (NAAUSA) recently released a report titled "The Dangerous Myths of Drug Sentencing 'Reform,'" (pdf) to argue "the current federal sentencing system and its penalties for drug trafficking represent a far better approach toward equal justice under the law than the alternatives currently under consideration by Congress."

They are swimming against the tide, and they know it, and there's some extremely desperate drug warrior talking points cranked up to 11 in the report. The report insists federal prison population isn't exploding, which is true in the sense that it has already exploded and is now coming down, thanks to other sentence reform efforts (which the report does acknowledge). It weights the discussion in the direction of talking about drug traffickers to make it appear as though the majority of federal drug prisoners are big bad guys. And there's a baffling contradiction in the report as a result of throwing all the talking points together without consideration of what they actually say. Here's a quote from the section that attempts to insist that all drug trafficking is violent (let's not stop to examine why that is):

"We are in the midst of one of the worst drug epidemics in our history. Fatalities through overdoses of illegal drugs are skyrocketing: There has been a '5-fold increase in the total number of [heroin] deaths' from 2001 to 2003. In real numbers, in 2013 alone over 8,000 people died from heroin overdoses and nearly 5,000 died from cocaine overdoses."

We know that the jump in heroin use is directly related to the decreased access to Oxycontin in current drug war efforts, but this is not an opportunity for reflection. If it were, they certainly wouldn't have pivoted to this argument just four pages later:

"Since the enactment of the current minimum mandatory penalty scheme, violent crime has been cut in half across the country. The FBI reports that the rate of violent crime—murder, rape, robbery and aggravated assault—per 100,000 people was cut from 758.2 in 1991 to 367 in 2013."

So we are in our most peaceful worst drug epidemic ever? They managed to combine the "We're losing the drug war so we can't back down at all!" argument with the "We're winning the drug war so we can't back down at all!" argument in the exact same report.

But that's just scare tactics. The report is a bit clearer about what prosecutors actually want: to use mandatory minimums a bludgeon to force cooperation, even so far as to arguing that it's a good thing if it they intimidate defendants from exercising their right to fight against criminal charges:

"[M]any … defendants likely could have avoided mandatory minimum sentences by telling the truth to prosecutors through cooperation or safety valve-related opportunities, designed to apprehend drug traffickers polluting our communities. Cooperation with law enforcement officers, as the Supreme Court has recognized, is a 'deeply rooted social obligation' and the refusal to cooperate is 'a badge of irresponsible citizenship.'"

This argument squares with a recent BuzzFeed report that the White House has expressed concerns that the reforms of the recently introduced Safe, Accountable, Fair and Effective (SAFE) Justice Act would hamper prosecutors' efforts to go after "bigger fish" in the drug trade.

Fortunately we have the folks of Families Against Mandatory Minimums (FAMM) to put all this information in the proper perspective in their own report. Federal prison population only very recently stopped growing, and they've got a chart to show how big that explosion actually was. They point out that nobody is saying that the drug offenders in federal prison are all just users and not traffickers, but rather that the system doesn't differentiate between drug "kingpins" and nobodies, and it's the nobodies who are getting the big sentences. FAMM points out that the reason some drug offenders avoid mandatory minimums is by assisting the prosecution, not because they don't qualify for mandatory minimums (and the prosecutor wields significant discretion here based on their assistance). Responding to the claim that drug trafficking is inherently violent, FAMM points out that only a tiny percentage (.7) of federal drug offenders sentenced in 2014 used violence or threats of violence. Nearly half had no previous criminal record. And 93 percent of those sentenced didn't have any sort of leadership or management roles in the crimes for which they convicted.

But the most important counter to NAAUSA's arguments is that mandatory minimums aren't even the prosecutorial tool the attorneys say it is:

"This complaint strains credulity when a record-high 97 percent of all defendants already forfeit their constitutional right to trial and plead guilty."

The Department of Justice can file dozens of charges against anybody who refused to plea out. They don't need mandatory minimums to force cooperation. And, FAMM notes, the Department of Justice agrees, with Deputy Attorney General Sally Yates stating that even as use of mandatory minimums dropped by 20 percent, defendants pleaded guilty at the same massive rate.

NAAUSA reps had a couple of press briefings on the Hill yesterday. Former editor and current FAMM Spokesperson Mike Riggs attended the House briefing and found it poorly attended.

"They used sort of classic law enforcement techniques to make drug offenses seem scary," Riggs said. "They talk about the drug value of cocaine and heroin because it's more money than marijuana. They didn't talk about marijuana at all in mandatory minimums."

Asked whether FAMM was concerned about BuzzFeed's report that the White House had misgivings about taking mandatory minimums away as a tool for prosecutors, Riggs said they were not.

"The SAFE Justice Act is an ambitious piece of legislation," Riggs said. "We know there are various people we have to get to the table. We're pretty confident … we'll be able to get a good piece of legislation out of it." He considers the NAAUSA to be outliers, as there are many federal prosecutors who do support sentencing reform, including both former Attorney General Eric Holder and current Attorney Loretta Lynch.

And even assuming NAAUSA is correct that mandatory minimums are a useful tool to get cooperation from drug traffickers, Riggs' response is, "Let's help you get new tools." Ones that don't result in absurdly long sentences for non-violent crimes.

NEXT: Economic Freedom Makes People Happy

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. They managed to combine the “We’re losing the drug war so we can’t back down at all!” argument with the “We’re winning the drug war so we can’t back down at all!” argument in the exact same report.

    This report was pushed by prosecutors, after all. They’re not used to actually having to plead their cases.

    1. Well done.

    2. Drug warriors have been using the same contradictory arguments since 666 was President.

    3. (does flourishing snap) oh no, you didn’t!

  2. Cooperation with law enforcement officers, as the Supreme Court has recognized, is a ‘deeply rooted social obligation’ and the refusal to cooperate is ‘a badge of irresponsible citizenship.'”

    This is the funniest thing I will read all day.

    1. Everyone knows the Fifth Amendment was a fluke.

    2. lawyers are bigger pieces of shit than cops on average

      1. Now now. Only prosecutors or judges are.

        In law school, A students become professors, B students become rich, and C students become prosecutors.

        1. And the D students become public defenders.

      2. Unless the lawyer has agreed to represent you, you should know not to trust him/her.

        On the other hand, never trust any cop you run into.

        1. “Unless the lawyer has agreed to represent you…”

          In which case, keep your hand on your wallet at all times…

    3. I tried to write a joke about it but…yep.

      1. The only way to top it would be to append it with “…unless you’re married.”

        1. OH SNAP

            1. Yum…maybe I’ll shack up with him next.

              But when he drives drunk, I’ll be sure to do my duty and tattle!

        2. (snickers)

            1. (whatchamacallit)

              1. (take 5)

                1. (HEATH)

                  1. They all have hilarious names and are delicious!

                    1. WHAT EVER HAPPENED TO MALLO CUPS???

                    2. They remained gross.

                    3. More importantly, whatever happened to white dog crap?

                  2. A subsidiary of Hershey Chocolate!

                    1. Heath bars were produced by LS Heath and Sons, a family name! I knew the guy who ran it, when I worked in the hospital in Robinson, IL, where the company produced Heath bars until the ’90s! Hershey bought them out

                    2. And Heath Ice Cream Bars are the very best tasting thing on the entire planet, and possibly in the universe.

                    3. Heath Blizzards are not too bad in a pinch.

                    4. Agreed, but such a pale imitation.

    4. Prosecutors, politicians, and police will never give up on draconian mandatory minimum sentencing laws. Of course they are all exempt from such laws. And our Supreme Court has long been a complete joke. They almost always side with prosecutors and personal injury lawyers.

  3. And now I want to watch She’s All That. Thanks a lot, Scott.

    1. The only thing anti-drug PSAs in high school ever taught me is that Rachel Leigh Cook is hot as fuck.

      1. And never let her into my kitchen.

  4. Baffle everyone with bullshit.

  5. [M]any ? defendants likely could have avoided mandatory minimum sentences by telling the truth to prosecutors through cooperation or safety valve-related opportunities, designed to apprehend drug traffickers polluting our communities.

    Stuck between arbitrary prison terms and the whims of prosecutors.

    1. The whims of prosecutors using arbitrary minimums to extract confessions…

  6. Lawyers don’t do logic. They due retribution, “teh rule of law”, respect my authoritaaay and making any shit argument they can slap together in order to convince a jury with average IQ of 100

    1. Some of us do care about reason, logic, and legitimate rule of law. Sadly, there isn’t enough of us like that.

    2. a jury with average IQ of 100

      So… normal people?

      1. Did you know that 90% of students score well below the median?

      2. I would argue a maximum of 100. Those over 100 knew how to avoid jury duty.

    3. Not every lawyer is a prosecutor that can ruthlessly take advantage of a system of laws skewed in the state’s favor, dude.

  7. Epidemic, Visualized

    What the legal eagles seem to want to avoid stating –

    Drug use is a relative constant in the population regardless of whatever policies the government has tried to adopt. Education, Treatment, Enforcement … nothing they do seems to stop ~8% of the adult population from semi-regularly using stuff to get high. And kids seem to be using less drugs than ever, all on their own, despite family members who probably grew up smoking pot and still do.

    The Problem… for the Enforcement crowd…. is that the “Problem” isn’t really a Problem.

    So they keep changing how they measure “the problem”. So they now hyperventilate about “Overdose Deaths!!” as though this is supposed to be a problem equally relevant to all those “other” drugs that don’t actually tend to cause overdose… like psychedelics or ecstasy or whatever.

    And, as noted – the overdose spike in the last 10 years seems to be driven by the boom in synthetic opiods rather than an increase in the availability of grade-A China-White Heroin.

    The irony is that these deaths are probably caused by their own policies – fear of calling 911 if a buddy overdoses, because your drug use was a ‘crime’

    1. These overdoses probably have nothing to do with war in regions where most of the world’s dope is produced. We know that the CIA would instantly shut down any kind of drug activity.

      /every President since LBJ

  8. Alt-Text: “This is Hermione from The Sorcerer’s Stoned“.

  9. OT: Does anyone here use Blogger and recieved this message:

    European Union laws require you to give European Union visitors information about cookies used on your blog. In many cases, these laws also require you to obtain consent.

    As a courtesy, we have added a notice on your blog to explain Google’s use of certain Blogger and Google cookies, including use of Google Analytics and AdSense cookies.

    You are responsible for confirming this notice actually works for your blog, and that it displays. If you employ other cookies, for example by adding third party features, this notice may not work for you. Learn more about this notice and your responsibilities.

    Is this nothing or have I been wrong to scoff at the Illuminati conspiracy nuts? So far, the only laws I’ve run afoul of have been those of god, good taste and basic logic – on a blog that gets 10 hits in a good month. Has anyone else heard of this EU thing?

    1. Yes, it’s pretty well known in web circles at this point, and if you visit certain euro-based sites you will see messages about it. You basically just have to inform them that cookies are used.

      1. Phew, thanks. Tinfoil hats don’t go with anything in my wardrobe.

        1. Susan,
          Tinfoil hats go with EVERYTHING!

          1. What many people don’t know is that, if tinfoil clashes with your outfit, then bubble wrap works equally well.

            1. But only the pink anti static stuff. The clear bubble wrap is a scam.

              1. Thanks, I forgot to mention that very important point. Also, if absolutely no other choice is available, a cap with two cup holders can provide some protection, provided that there are aluminum cans in the holders!

  10. I’m confused how keeping heroin illegal helps in the battle against the abuse epidemic…wouldn’t creating legal sources for the Drug be better for addicts, communities, etc.?

    1. No, no, that’s crazy talk. They must be driven into the shadows, where they can meet other addicts, perhaps under a bridge, and get the help they really need from people who know what they’re going through.

  11. What, no sexists jokes about that woman not knowing how to make an omelette? You guys let me down.

    1. Bitch was SUPPOSED to be makin’ me a sammich.

  12. The D.E.A. is underfunded and needs a bigger budget.

  13. I like fried eggs.


  14. I’m having an argument with the wife.

    Should it be, “safety valve-related opportunities” or “safety-valve related opportunities”?

    Your opinions are, as always, appreciated.

    1. This is why we have both em and en dashes.

  15. In real numbers, in 2013 alone over 8,000 people died from heroin overdoses and nearly 5,000 died from cocaine overdoses

    Oh noez! 13,000 deaths in a country with over 320,000,000 people! That’s a whopping 0.004% of th population That’s amost half the number of people in car accidents! /sarc

    1. The figure for coke was 900 accidental deaths a year for These States. But that was in 1987, before Ronnie and George Holy War Bush reawakened prohibitionism and destroyed every economy in the Western Hemisphere. The upside is that the Soviet economy collapsed, but US-backed Mohammedanism makes me kinda miss the commies.

  16. Depends – what kind of pipe are you laying?

  17. And of course, making a prosecutor’s life easier justifies any sort of injustice towards the accused.

  18. I’d like to ask the Department of Justice why some drugs are illegal.

    If this is really the Dept of Justice, they should have a justification for the war on drugs.

    Bad answer – because they are addictive. So are other substances like alcohol and nicotine but people are not arrested and imprisoned because they consume them.

    My gut tells me they just go along with this grave injustice because that’s the law.

    1. I tried that in 1967 at something resembling a League of Women Voters presentation. Asked why mescaline was illegal, a Landover Baptist prohibitionist turned white, waved his arms and shouted that it was “hundreds of times stronger than marijuana”–which practically drew a death sentence at the time. You have to prove to these assholes that Prohibition caused the Crash and wrecks economies as in 1893, 1907, 1929, 1987, 2007 and so on, so they cannot profit from it.

  19. The only job security these people have is prosecuting ‘drug-cases’. It’s not like they were fighting ‘real-crime’.

  20. Start making cash right now… Get more time with your family by doing jobs that only require for you to have a computer and an internet access and you can have that at your home. Start bringing up to $8596 a month. I’ve started this job and I’ve never been happier and now I am sharing it with you, so you can try it too. You can check it out here…

  21. So the parasites fastened like remoras about the jaws of the murdering prohibitionist juggernaut are yelping that they might have to work at an honest job if Americans were secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The pitiful wretches can always move to Indonesia–or to the banana republics enforcing US prohibitionism till prisons burst at the seams.

  22. Only 7% think the drug war is working. They’re called prohibitionist parasites, those who pad their pockets with Drug War money.

  23. Police and prosecutor’s logic across the legalization debate, as well as against repealing mandatory minimums, boils down to a simple statement: “If we don’t use legislation to manufacture more criminals, then we can’t use those criminals to find [i]even more[/i] criminals.”

    Fuck trying to get them to see the light of day on the whole personal liberty thing: What hope is there of making logical, reasonable, and just debate points to these groups? They openly espouse this immense bureaucracy, placing their own self-interest and aggrandizement before the liberty of other citizens, while real lives, real families are sacrificed on the altar of the drug war. Why they make these same sickening, sophomoric, and morally destitute arguments in support of mandatory minimums is simply beyond me.

    It’s like arguing with cartoon villainy. Seriously, prosecutors and police should appoint, I don’t know, maybe Cobra Commander as their mascot to debate mandatory minimums and drug law. At least he’s honest about his motivations.

  24. Start making cash right now… Get more time with your family by doing jobs that only require for you to have a computer and an internet access and you can have that at your home. Start bringing up to $8596 a month. I’ve started this job and I’ve never been happier and now I am sharing it with you, so you can try it too. You can check it out here…

  25. Cannabis and hemp are classified as Schedule1 drugs on the Federal level. I recognize a recent negative change in tone toward cannabis in Washington as well as my state of Michigan. I perceive our AG has a deep seated hatred for cannabis and the registered patients under the Michigan Medical Marijuana Act. Realizing Michigan’s AG wouldn’t back me up if and when the Feds come calling – I decided to return my MMMA card. With the “prisons for profits” business model ramping up – the last thing I would want is my name on a federal registry for those in possession of a Schedule 1 drug.

Please to post comments

Comments are closed.