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The Attorney General and Mandatory Drug Laws

Monday, September 23, 2013

The announced changes to mandatory minimum sentencing policy are a step in the right direction, but do they undermine the rule of law?

On August 9, Attorney General Eric Holder announced important changes in federal mandatory minimum sentencing policy. The changes were generally described in the media as reducing imprisonment for low-level, non-violent, non-gang-affiliated drug offenders. Public response has been strongly positive; indeed, there is much to like about getting smart on crime, not just tough on crime. It is useful, though, to distinguish between: (1) giving such sentences, (2) nuances of the attorney general’s particular policy directive, and (3) the question of who should decide whether and when sentences of a particular length should be imposed. Each of these perspectives, discussed in turn here, leads to increasing ambivalence about the attorney general’s announcement.

Goals and Targets of Long Drug Sentences

There are two ways to think about sentences: what is “just” and what is an effective policy? Long sentences for low-level, non-violent drug offenders fail on both counts. The first failure is obvious; the second requires a bit of background on the logic of prohibition.

When thinking of enforcement as a mechanism for driving up business costs, one would prefer to focus incapacitation on assets that are hard to replace, such as 'kingpins.' One would rather not squander expensive prison cells on easily replaceable workers such as couriers, drivers, and lookouts.

Our society allows free trade in most goods and services, but not all. It is not lawful to sell kidneys, ketamine, or fully-automatic Kalashnikov assault rifles, and so all support black markets. To have any teeth, a prohibition must punish suppliers to at least some extent. The goal is not to eradicate the trade; that is not realistic. Rather, the goal is to force the business to operate covertly. That impedes information flows and drives up the cost of doing business, as does the need to compensate workers for their risk of sanction. The resulting lower availability and higher prices help constrain production and consumption to a degree.

The extent to which prohibition reduces consumption is debated ad nauseam and will never be resolved; there are no controlled experiments that randomly assign countries to prohibition or free-market availability. But it is safe to say that prohibition reduces drug use substantially (no illegal drug is used as often or as widely as are alcohol or tobacco) but far from completely (after all, tens of millions of people do use illegal drugs).

Prohibition works best for goods whose production requires specialized skills or significant capital equipment. So prohibition has done a better job of restricting access to LSD (which is relatively hard to synthesize) than methamphetamine (which is easier to produce), and whereas everyday street criminals can obtain an assault rifle, few would know how to obtain nerve warfare agents.

When thinking of enforcement as a mechanism for driving up business costs, one would prefer to focus incapacitation on assets that are hard to replace, such as “kingpins” (meaning the entrepreneurial leaders of larger organizations) and skilled staff, such as chemists who can synthesize LSD and shipbuilders who manufacture the semi-submersibles used to smuggle cocaine. One would rather not squander expensive prison cells on easily replaceable workers such as couriers, drivers, and lookouts.

Attorney General Holder’s reforms are intended to improve the performance of drug-related incarceration in terms of both efficiency (more bang for the buck) and equity (reducing racial disparity). Will the new policy achieve these goals?

From that perspective, the attorney general’s initiative receives high but not perfect marks. While drug selling organizations are a bigger threat than individual sellers, it is not clear that organizational membership sharply distinguishes those who should and should not receive long sentences. Consider the LSD chemist. If the chemist were employed by a gang, the new policy would (properly) leave long sentences intact. But a chemist who merely sold LSD to a gang, without a formal organizational tie, might now be let off lightly. The policy also leaves long sentences intact for non-violent couriers, drivers, and lookouts because such specialists do not work alone; they must be working for someone else, i.e., they are part of an organization. 

Likewise, the term “low-level” conflates the ideas of market level and organizational role. Couriers can be low-level employees of organizations operating at high market levels, perhaps smuggling many hundreds of kilograms across the border. Conversely, the head of a retail trafficking gang is operating at a low level of the distribution chain.

Overall, though, the consensus view among drug policy researchers is that the new policy responds to a serious problem with good intentions, and the main worry is merely that it is only a policy directive, not a change in the law, so it could be reversed by a subsequent administration.

Nuances

One should always distinguish between a policy’s intended effects and possible unintended consequences. Attorney General Holder’s reforms are intended to improve the performance of drug-related incarceration in terms of both efficiency (more bang for the buck) and equity (reducing racial disparity). Will the new policy achieve these goals?

As others have noted, federal reforms alone cannot solve the over-incarceration problem. The federal government only incarcerates about one in five drug-law violators (roughly 100,000 out of 500,000).1 Furthermore, many would not meet the new policy’s criteria, and others would not need it. The Washington Post reports that one of the first offenders to whom the policy applied, Marko Bukumirovic, would likely have avoided the mandatory minimum anyhow through a preexisting “safety valve.”2 However, the new policy also has value symbolically – as a signal to states – not just instrumentally.

One possible unintended consequence could be to weaken the hand of prosecutors. (U.S. attorneys have considerable autonomy, so “weaken the hand” is more accurate than “tie the hand.”) Only hard-core drug warriors think incarcerating functionaries for five or ten years is just or effective, but there are two arguments for giving prosecutors that option. The first is the “Al Capone” tactic. Al Capone was sentenced to eleven years for tax evasion. That extraordinary sentence served the public interest because it was not possible to convict Capone for his other, more heinous crimes. 

A more fundamental concern – to some – pertains to process. The worry is that the nation’s chief law enforcement officer, and by extension the chief executive, can undermine the rule of law not only by punishing those who have not violated laws but also by withholding punishment from those who have.

Note in this regard the distinction between “non-violent” and “has no prior convictions for violent offences.” The Justice Department surveys random samples of prison inmates every few years. More than a few incarcerated drug-law violators with no official history of violence nonetheless report on these surveys that they have committed acts of violence, sometimes including gun violence. It is possible that police and prosecutors knew of such acts, even if they lacked the evidence needed to obtain a conviction for them.

The second argument for giving prosecutors a strong hand is as a means to the end of catching kingpins. Police and prosecutors often work their way up the distribution chain; they arrest easier to locate functionaries and threaten them with long sentences in order to obtain information that can be used to locate, arrest, and convict higher level and more dangerous offenders. Ideally, underlings might be threatened but would not actually receive long sentences. While we clearly do not live in such an ideal world, prosecutors claim to wield this club responsibly. Critics counter that underlings usually don’t have much useful information to offer, while the kingpins do – and so evade long sentences by offering material cooperation. To the best of my knowledge, no one has systematically estimated how often long sentences are threatened but not employed relative to cases in which long sentences were meted out to underlings while achieving no such benefit, but prosecutors have clearly lost the public relations battle; the common presumption – warranted or not – is that misuse outweighs the benefits.

The new policy may also fall somewhat short of its intended consequences with respect to racial and ethnic disparities. Drugs generally, but particularly cocaine and heroin, may change hands three to six times within the United States before reaching the user. Larger organizations, as opposed to individuals, are most common near the two ends of the distribution chain; at the import level (because smuggling across international borders is complicated) and at the retail level. Most retailing happens discreetly within social networks or via prearranged meetings; that can be done by individuals and generates relatively few arrests and so relatively less incarceration. By contrast, the stereotypical street-corner drug markets are flagrant, attract police attention, and often are both located in a disadvantaged community and are controlled by a street gang. Federal enforcement usually ignores all retail selling, but has gotten involved in responding to violent street gangs, particularly those dealing crack.

Organizations of all ethnicities import drugs, but given the geography of production and transshipment, smuggling operations are disproportionately Hispanic. Likewise, members of all racial and ethnic groups participate in retail selling, but – with the exception of outlaw motorcycle groups – the gang members are disproportionately minorities.

So granting leniency to minor functionaries who are easily replaced (e.g., lookouts and couriers) might have done more to reduce racial/ethnic disproportionality than will providing leniency to those who are not part of an organization. Likewise, as Keith Humphreys argued in The Washington Monthly, restoring the option of parole for federal prisoners might do more to reduce unproductive incarceration overall, and in a manner that allows more case-by-case discretion.

Questions of Process

None of these nuances detract from the basic observation that less can be more when it comes to long sentences for minor drug law violators. A more fundamental concern – to some – pertains to process. The worry is that the nation’s chief law enforcement officer, and by extension the chief executive, can undermine the rule of law not only by punishing those who have not violated laws but also by withholding punishment from those who have. This issue is often associated with controversial pardons (such as President Ford’s pardon of former President Nixon and President Clinton’s last-day-in-office pardon of financier Marc Rich), but also pertains to policy decisions to neglect entirely the enforcement of certain laws, or portions of those laws.

The issue is not with laws deemed to be unconstitutional; the Obama Administration’s neglect of DOMA (the Defense of Marriage Act) is similar in spirit to President Jefferson’s non-enforcement of the Alien and Sedition Acts.

For over 30 years there has been a conflict between the three branches of government over who should decide sentence length and whether the sentences should vary from case to case or be uniform for all cases within a given class.

The issue pertains to laws that have been legitimately passed, such as President Obama’s waiving 32 states and the District of Columbia out of No Child Left Behind Act requirements or choosing not to enforce immigration laws against youth who meet the criteria of the DREAM Act (which Congress had not passed). The most recent example is Attorney General Holder’s announcement on August 29 that the Justice Department would not enforce the Controlled Substances Act against companies – even large companies – that produce and distribute marijuana as a recreational drug as long as those companies operated within a “strong and effective” state regulatory system (and also met eight other criteria).

It is important to note that starting in January, the two states in question – Colorado and Washington – will allow large-scale, for-profit production and distribution of recreational marijuana. Their systems do not pertain only to medical marijuana, home-growing, or personal possession and use. Washington’s I-502 and Colorado’s Amendment 64 legalized commercial production for nonmedical purposes.

Non-enforcement has a long history within both political parties, and partisan affiliation may govern people’s attitudes on particular cases. The recent instances might all sound hunky-dory to liberals, but it is easy to put the shoe on the other foot. Imagine if the 2016 elections brought both a Republican administration to the White House and passage in a pro-gun state of a proposition legalizing the production and sale of fully automatic assault rifles within a “strong and effective” state regulatory system. Liberals might cry foul if the future attorney general decided his or her enforcement priorities did not include stopping corporations from openly producing and selling those assault rifles – even though that activity would clearly violate federal gun control laws.

Or suppose that Section 4 of the Voting Rights Act had not been struck down by the Supreme Court but instead a states-rights-oriented administration simply decided not to enforce it. Or suppose a state passed a minimum wage of $3 per hour and a pro-business president decided it wasn’t a priority to block legalization of employment at wages below the national minimum.

Decisions by the executive branch not to enforce a law duly passed by Congress ought to be thought about in the context of the checks and balances between branches of government, not just from the perspective of whether they are good policy. It might be entirely sensible for someone to say, “I oppose the attorney general’s decision even though I want Congress to take the exact same step.”

We reached our current dysfunctional system not only from a desire to increase toughness overall, but also out of a desire to reduce sentencing disparities by keying sentence length to objective factors like quantity of drugs possessed.

For over 30 years there has been a conflict between the three branches of government over who should decide sentence length and whether the sentences should vary from case to case or be uniform for all cases within a given class. Initially (circa 1980), judges had significant latitude to tailor sentences to the particulars of the case at hand, needing only to stay within broad ranges. That system had few checks to prevent a racist judge from meting out longer sentences to minorities and, indeed, there was disparate sentencing. They also allowed “soft” judges to under-punish, as in the recent case of a Montana judge who suspended all but 31 days of an ex-teacher’s 15-year sentence for statutory rape of a 14-year-old student. Legislatures intervened by enacting minimum sentencing laws and sentencing “guidelines” with quite narrow bands; this effectively shifted discretion to prosecutors, since the conviction charge now largely determined the sentence.

The goal was to make sentencing formulaic: an armed robbery plus a prior record of a given length plus this or that aggravating or mitigating circumstance equals a sentence of X months. Writing such formulae is always tricky, but it is especially so for drug law violations. There are relatively few easy to observe, measure, and prove characteristics that can serve as inputs. So quantity possessed at the time of arrest often looms large in the calculations. However, kingpins can hire others (“couriers” or “mules”) to possess and transport the drugs that the kingpin owns and controls. Not surprisingly, those willing to risk long sentences for the relatively meager pay such functionaries receive are primarily individuals with mediocre prospects in the legitimate labor market. Given disparities that pervade society, this means they are disproportionately minorities. In short, we reached our current dysfunctional system not only from a desire to increase toughness overall, but also out of a desire to reduce sentencing disparities by keying sentence length to objective factors like quantity of drugs possessed.

I will not defend the current system. Indeed, I have coauthored a book about its inefficiency and unfairness; I personally argue for restoring greater discretion to judges so they can make decisions based on the merits of each individual case. Nevertheless, mandatory sentencing is the duly passed law of the land. No one seriously argues that the tough sentencing laws were foisted on the public by deception or intrigue; our elected representatives passed those (in my honest opinion, misguided) laws through the normal and constitutionally-specified processes.

So it is not clear that the attorney general’s recent actions on mandatory minimum sentences or marijuana enforcement cross a bright line, but arguably that itself is something of a problem. It is not clear where the line is.

What, then, is the duty of the federal government’s chief law enforcement officer with regard to these laws? The Department of Justice’s mission statement says it strives to enforce the law, ensure public safety, control crime, seek just punishment for the guilty, and ensure fair and impartial administration of justice. That implies a balancing, leaving open the possibility that it might choose not to enforce a law whose enforcement is not fair or impartial.

Indeed, police and prosecutors routinely make choices about which cases to pursue and which to ignore. For example, before the attorney general’s August 29 announcement, federal policy was to presume that those distributing large quantities of marijuana (e.g., 100 or more plants, or 100 or more pounds) were enforcement priorities, but lower-level distributors (and of course users) were not.

So it is not clear that the attorney general’s recent actions on mandatory minimum sentences or marijuana enforcement cross a bright line, but arguably that itself is something of a problem. It is not clear where the line is. The attorney general has taken two bold steps in a direction that, if continued too far, could undermine the rule of law, but most academic observers applaud these first two steps and wish Congress had taken them sooner.3

Perhaps it boils down to who one trusts. Those who trust the current administration more than they trust prosecutors or Congress see the attorney general’s actions as a win. Those who mistrust either this administration or strong presidential powers in general may worry that liberty has won a Pyrrhic victory – more freedom for a few thousand or tens of thousands of drug dealers purchased with a subtle shift in power from the legislature to the executive and a precedent that could be misused in the future.

Jonathan Caulkins is Stever Professor of Operations Research and Public Policy at Carnegie Mellon University's Heinz College. He specializes in systems analysis of problems pertaining to drugs, crime, terror, violence, and prevention. He has authored or co-authored nine books including most recently Marijuana Legalization: What Everyone Needs to Know (2012, OUP).

FURTHER READING: Michael Barone writes “With Crime Down, the Nation Moves to Ease Get-Tough Policies” and “Conservatives Backtrack on Long Prison Sentences.” Cliff Asness says "The GOP Must Lead (Again) on Civil Rights." Nick Schulz discusses the implications of legalized marijuana in “On the Ballot in November: Marijuana.” Mark J. Perry contributes “The U.S. War on Drugs is Immoral… and Hopeless” and “Chicago’s Gun Violence Can Be Traced to Drug Prohibition.”

1 Drug law violators do, however, make up close to half of the federal prison population versus only one-in-six state prisoners. And whereas state prison populations have been falling now for several years, they are still creeping up at the federal level.

2 The Washington Post also says Bukumirovic was convicted of distributing more than five kilograms of cocaine – enough for roughly 40 person-years of heavy cocaine use – so it’s also not clear whether he was really a “low-level” offender. The long-standing debate over federal mandatory minimum sentences for crack pertained to a five gram threshold, or one one-thousandth as much.

3 For the record, I favor repeal or restriction of mandatory minimum laws, but oppose allowing private businesses – particularly large businesses – to produce and distribute marijuana; the history of alcohol and tobacco leave me wary about the marketing and lobbying power of industries that produce dependence-inducing substances. For more, see Caulkins et al., Marijuana Legalization: What Everyone Needs to Know (OUP, 2012).

Image by Dianna Ingram / Bergman Group

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