The following commentary by The Sentencing Project’s Federal Advocacy Counsel Jeremy Haile was published on the Daily Journal. You can view the PDF here.
This summer, a group of federal prosecutors may have offered the best evidence yet that federal drug sentencing reform is finally upon us.
Just as Congress appeared ready to take up targeted reforms to mandatory minimum drug penalties, the National Association of Assistant U.S Attorneys (NAAUSA) — a group that bills itself as the “bar association” for the nation’s career federal prosecutors — published a 13-page paper vigorously defending the status quo.
In some respects, this is unsurprising. After all, mandatory minimums give prosecutors enormous power. According to former Assistant U.S. Attorney Mark Osler, mandatories make it easy to plead a case out, lessening the effort and expense of trial. Prosecutors might fear that removing mandatory penalties would make their jobs harder.
But that is hardly a compelling argument against reform — not while thousands of lives, and potentially billions of dollars, hang in the balance. So rather than making a patently self-interested argument, NAAUSA is instead trying to undermine the premises on which reform efforts are based.
The NAAUSA report, titled “The Dangerous Myths of Drug Sentencing ‘Reform,'” challenges a number of claims attributed (sometimes inaccurately) to reformers. But it can be boiled down to three refrains that are often heard from opponents of reform.
First, NAAUSA says there are few, if any, “low-level drug offenders” in federal prisons, and that they are not serving mandatory minimum sentences. This claim is contradicted by both data and experience.
Today, about half of all federal prisoners are serving time on a drug charge. According to the U.S. Sentencing Commission — the most reliable independent source of federal sentencing data — nearly 55,000 of these individuals were serving a mandatory minimum drug sentence in 2011. Commission data show that mandatory penalties are frequently imposed on street-level sellers — those who sell less than an ounce of a particular drug. Nearly 45% of these offenders are serving a mandatory minimum sentence.
Low-level drug offenses can also trigger extreme punishments in more complex ways. Stephanie George, for example, was sentenced to life imprisonment after police found a half-kilogram of cocaine that a former boyfriend had hidden in her attic. Because of her two prior minor drug convictions, she received a mandatory sentence of life without parole.
In court, Judge Roger Vinson, a Reagan appointee, said to Ms. George: “Even though you have been involved in drugs and drug dealing, your role has basically been as a girlfriend and bag holder and money holder but not actively involved in the drug dealing.”
Judge Vinson said that the offense did not warrant a life sentence, but that his hands were tied by the mandatory minimum statute. (Evidently, President Obama agreed. Last year, Ms. George’s sentence was commuted after she had served 17 years in prison.)
But perhaps, as NAAUSA claims, mandatory minimum sentences are necessary to ensure public safety? Not according to the evidence.
Last year, the National Research Council reviewed the research literature on the deterrent effect of mandatory sentencing laws and found that “the evidence is insufficient to justify the conclusion that these harsher punishments yield measurable public safety benefits.” And while scholars differ on the incapacitative effects of incarceration, the effect is especially weak for very long sentences (because offending declines sharply with age) and for drug offenses in particular (due to the ready replacement of sellers).
In 2007, NAAUSA predicted doom when the U.S. Sentencing Commission moved to reduce penalties for excessively punitive crack cocaine offenses. But in a 2014 recidivism study, the Commission found no difference in recidivism rates for those individuals released under the reduced penalties compared to individuals whose sentences were not reduced. In other words, longer prison terms did not lead to reduced crime.
Moreover, between 2003 and 2009, the state of New York substantially reformed its draconian Rockefeller Drug Laws. Many mandatory minimum terms were eliminated or reduced, including retroactively for individuals incarcerated under the old law. Since that time, New York has seen its crime rates decline at a faster pace than the national average.
Finally, NAAUSA asserts that reducing mandatory penalties would threaten the prosecution of high-level drug traffickers by undermining the incentive for lower-level defendants to cooperate. The evidence tells a different story.
According to the U.S. Sentencing Commission, there is little difference in rates of cooperation for offenses having no mandatory minimum compared with offenses that carry strict minimums. That’s because low-level operators typically have little information about drug kingpins, regardless of the length of the mandatory sentence they face.
A recent Commission report assessing the impact of the Fair Sentencing Act showed that rates of crack cocaine defendants cooperating with law enforcement have not changed under the reduced penalties.
Deputy Attorney General Sally Yates, a career federal prosecutor, recently told BuzzFeed that under Justice Department reforms aimed at avoiding mandatory minimum penalties, “[T]he rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”
So it turns out that NAAUSA’s “myths” supporting drug sentencing reform are myths themselves — contradicted by data, practitioners, and simple observation.
The truth is that federal mandatory minimum drug penalties have exacted enormous costs — both fiscal and human — without benefiting public safety. Legislation such as the bipartisan Smarter Sentencing Act, as well as other measures pending in Congress, represent an important step toward addressing the excessive sentences and prison populations caused by our outdated federal drug laws.