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!

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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 Reason.com 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.