Drug sentencing in the U.S. is way too harsh, specifically federal-drug sentencing. A guy who gets a slap on the wrist in state court for selling two bags of coke to an undercover ends up looking at 10 or even 20 years in federal prison when he’s prosecuted as being part of a conspiracy for selling those same two bags.
I kid you not. Conspiracy law is so vast and fluid, even the lowest guy on the totem poll — the street dealer who makes barely enough money to afford a cab — can be indicted with the higher-ups, people he never even knew existed, and charged with the amount the whole group moves per day. This leads to huge mandatory-minimum numbers, especially if the person has a prior state conviction.
Obama’s week of initiatives — pardoning 46 inmates, visiting a federal prison in Oklahoma, and speaking to the NAACP about the disproportionate effects of mandatory sentencing on mostly black and Hispanic males between the ages 18 to 24 — is a great start, much awaited and much needed.
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But it’s a drop in the bucket. Drug sentences should be reduced, mandatory minimums abolished, and power should be distributed more to judges and less to prosecutors.
I agree that in a perfect world people shouldn’t sell drug; people shouldn’t use drugs; people shouldn’t prey on others and encourage them to use or sell drugs. But this is the real world. As long as people want drugs, others will sell them. Simple supply and demand.
To state the obvious, people use drugs for a multitude of reasons and with varying frequency. Some just want to try them, some are looking to party for the night, others take illegal drugs to self-medicate, while some just can’t stop.
What’s clear is the interdiction system — i.e., arresting and punishing the users and sellers — is not working to either reduce drug use or stop drug trafficking. It’s like an underground leak. Plug one hole, and the water just finds another way to get distributed.
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What’s also clear is that the present enforcement system targets and penalizes the low-hanging fruit, the guys selling on the street, the kids selling in the projects, and the “mules” swallowing drugs in Colombia then excreting them out in NYC.
I personally am not a conspiracy theorist, so I don’t believe this is all done purposefully to imprison our black and Hispanic youth (although this is a consequence). I believe law enforcement takes this route because it’s easiest and because they believe the lowest guys on the totem pole will lead them to bigger movers by snitching on the higher-ups because of the ridiculously high sentence they’re seeking to avoid. But often the street guy has no clue who the higher-ups even are, making their information, should they chose to provide it, none too useful. And if the information provided isn’t “substantial,” a term of art in federal practice, they’ve put themselves at risk for absolutely no benefit.
With President Obama leading the charge, it appears that political forces from both the right and left are recognizing that the mass incarceration of young people convicted of low-level drug offenses is not only ineffective, but expensive.
All the arguments to the contrary don’t hold water: 1) The just-get-them-off-the-street rational hasn’t worked. Hordes more wait in the wings to take their place. 2)The deterrence argument — just put them in jail and they won’t do it again — is true for some, but not for most. With the cut-backs on rehabilitative and educational programs in prison plus the whammy having a criminal record puts on your ability to ever be gainfully employed, many go back to selling drugs because it’s their best bet at making money.
What are some better approaches? How about making drugs legal! I never espoused this position, but I’m coming around to it. Yes, it may lead to greater numbers of addicts, and who hasn’t seen what the horrors of drug addiction can do to an individual and a family, but there are many positive aspects.
For example, an incredible savings in the cost of interdiction and imprisonment. Tax benefits for the state. That money, saved and earned, could be spent on educating people about the hazards of drug use, just like we’ve already done for cigarette smoking. There could be controlled distribution and access.
However, having watched the slow crawl toward the legalization of marijuana, it’s unrealistic to think that any such blanket decriminalization will happen in my lifetime. So in the meantime, the band-aid approach works better than nothing.
Even though the President’s pardon of a handful of prisoners is a gesture and not an initiative, at least it gets the ball rolling. Let’s keep working the debate. The benefits of the “war on drugs” that’s been waged since before I started as a public defender in the 80s are questionable. The casualties are clear.
It’s time to look anew at the decades of data we’ve gathered. Cheers to President Obama for shining light on this important issue, but it’s only the beginning.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.