Send comments, tips,
and suggestions to:
Join us on Pete's couch.
couch, the longest running single-issue blog devoted to drug policy, is published by the Prohibition Isn't Free Foundation
March 2009



Bill to Eliminate Federal Drug Mandatory Minimums

Via TalkLeft
Rep. Maxine Waters has introduced H. R. 1466: Major Drug Trafficking Prosecution Act of 2009

To concentrate Federal resources aimed at the prosecution of drug offenses on those offenses that are major.

Some great statements made in the bill language:

(1) Since the enactment of mandatory minimum sentencing for drug users, the Federal Bureau of Prisons budget increased from $220 million in 1986 to $5.4 billion in 2008.
(2) Mandatory minimum sentences are statutorily prescribed terms of imprisonment that automatically attach upon conviction of certain criminal conduct, usually pertaining to drug or firearm offenses. Absent very narrow criteria for relief, a sentencing judge is powerless to mandate a term of imprisonment below the mandatory minimum. Mandatory minimum sentences for drug offenses rely solely upon the weight of the substance as a proxy for the degree of involvement of a defendant‰s role.
(3) Mandatory minimum sentences have consistently been shown to have a disproportionate impact on African Americans. The United States Sentencing Commission, in a 15-year overview of the Federal sentencing system, concluded that ëmandatory penalty statutes are used inconsistently‰ and disproportionately affect African American defendants. As a result, African American drug defendants are 20 percent more likely to be sentenced to prison than white drug defendants. […]
(5) Between 1994 and 2003, the average time served by African Americans for a drug offense increased by 62 percent, compared with a 17 percent increase among white drug defendants. Much of this disparity is attributable to the severe penalties associated with crack cocaine.
(6) African Americans, on average, now serve almost as much time in Federal prison for a drug offense (58.7 months) as whites do for a violent offense (61.7 months).
(7) Linking drug quantity with punishment severity has had a particularly profound impact on women, who are more likely to play peripheral roles in a drug enterprise than men. However, because prosecutors can attach drug quantities to an individual regardless of the level of culpability of a defendant‰s participation in the charged offense, women have been exposed to increasingly punitive sentences to incarceration. […]
(9) Low-level and mid-level drug offenders can be adequately prosecuted by the States and punished or supervised in treatment as appropriate.
(10) Federal drug enforcement resources are not being properly focused, as only 12.8 percent of powder cocaine prosecutions and 8.4 percent of crack cocaine prosecutions were brought against high-level traffickers, according to the Report to Congress: Cocaine and Federal Sentencing Policy, issued May, 2007 by the United States Sentencing Commission. […]
(12) The Departments of Justice, Treasury, and Homeland Security are the agencies with the greatest capacity to investigate, prosecute and dismantle the highest level of drug trafficking organizations, and investigations and prosecutions of low-level offenders divert Federal personnel and resources from the prosecution of the highest-level traffickers, for which such agencies are best suited.[…]
(14) One consequence of the improper focus of Federal cocaine prosecutions has been that the overwhelming majority of low-level offenders subject to the heightened crack cocaine penalties are black and according to the Report to Congress only 8.8 percent of Federal crack cocaine convictions were imposed on whites, while 81.8 percent and 8.4 percent were imposed on blacks and Hispanics, respectively […]
(18) According to the Justice Department, the time spent in prison does not affect recidivism rates.

The bill also expressly requires the approval of the Attorney General to prosecute a case where the quantity of drugs is not major (in the case of cocaine, less than 500 grams), leaving small cases to the states.
This looks like a good bill, that could reasonably get some political traction as it essentially comes across as saving money by going after the big guys.

Cheryl Lynn Noel case reaches trial

It’s been over 4 years since Cheryl Noel was shot to death by cops in her bedroom. (My first coverage here.) There’s no doubt that Cheryl was a Drug War Victim, but there were a lot of unanswered questions, and I’ve been waiting since then for more information with a standing news alert for her […]

Prison Nation

Cato Unbound has another good debate going on: Behind Bars in the Land of the Free
It leads off with Glenn Loury (whose work on race and incarceration I’ve talked about before), who has an excellent essay: A Nation of Jailers
He fully admits that he writes from a position of race sensitivity, and when covering our prison population, it’s pretty hard to avoid talking about race. And he makes a point about how policy can be inherently racist even when individuals or individual arrests/prosecutions are not.

But the sum of a million cases, each one rightly judged fairly on its individual merits, may nevertheless constitute a great historic wrong. This is, in my view, now the case in regards to the race and social class disparities that characterize the very punitive policy that we have directed at lawbreakers. And yet, the state does not only deal with individual cases. It also makes policies in the aggregate, and the consequences of these policies are more or less knowable. It is in the making of such aggregate policy judgments that questions of social responsibility arise.

He doesn’t talk specifically about the drug war, but you can see powerfully it in his writing.
There’s a lot of good stuff there (it’s a long essay) and I’m not going to highlight all of it, but there was another point which I though was important — in a way of pre-empting what he knew would be coming from the “broken-windows” respondents — discussion of the value of the lives of those incarcerated (something that’s often left out of discussions of the value of imprisonment).

Consider, for instance, that it is not possible to conduct a cost-benefit analysis of our nation‰s world-historic prison buildup over the past 35 years without implicitly specifying how the costs imposed on the persons imprisoned, and their families, are to be reckoned. Of course, this has not stopped analysts from pronouncing on the purported net benefits to ‹societyŠ of greater incarceration without addressing that question! Still, how — or, indeed, whether — to weigh the costs born by law-breakers — that is, how (or whether) to acknowledge their humanity — remains a fundamental and difficult question of social ethics. Political discourses in the United States have given insufficient weight to the collateral damage imposed by punishment policies on the offenders themselves, and on those who are knitted together with offenders in networks of social and psychic affiliation.

And, of course, who was he thinking of? James Q Wilson, who responds in Addressing the Problems that Lead to Prison
He dances around a bunch of disputed data about the relationship between prison numbers and societal safety and comes up with such statements as:

America is more punitive, but except for homicide, it is also safer. The key moral and political question is whether our greater personal safety is worth our greater use of prison.

Actually, no. That is not the key moral question, and additionally, the facts don’t show that our level of incarceration is needed to obtain personal safety. (The notion that greater incarceration means greater safety leads to absurd end results.)
He also uses his time-honored tradition of looking at only one part of the puzzle when discussing race.

There is an even more important question: Why is it that so large a percentage of African Americans spend time in prison? We cannot say that it is because America is ‹racist.Š Racism exists here, but it cannot account for the fact that the racial identity of people who commit assaults and robberies is almost exactly the same as the racial identity of people who go to prison for those crimes.

This is very close to a statement he made some time ago when guest-blogging at Volokh

Do police excessively arrest blacks? “The race of criminals reported by crime victims matches arrest data.”

Last I heard, not everyone was in prison for assault or robbery. A few were in there for drug crimes. And some of them may even be black. And the “crime victims” of drug crime don’t exist. (“Officer, officer, someone just sold me some drugs. And he was black!”)
Another respondent is John R. Lott, Jr. with Reforms That Ignore the Black Victims of Crime
This is a piece full of absurdity and trickery, that misses the big picture, while trotting out “I care” statements from a position of utter ignorance of the true situation.
He comes up with statements like:

If we punish black criminals a lot, isn‰t it possible that the reason we are doing it is because we care about the black victims?

He also has a fascinating detour, where he complains that wealthy individuals are hurt more than poor blacks when sent to prison because they lose more money.

The criminal justice system discriminates against higher-income criminals…

Finally, he makes statements like:

Nor does he recognize how extremely progressive criminal penalties are. […] criminal penalties are already extremely progressive.

I was floored by that, until I realized that apparently he’s using the word “progressive” here like it’s used in income tax terms (higher tax as the income goes higher). In other words, he’s back on his kick that the wealthy are disproportionately penalized in the prison system.
In fact, “progressive,” when referring to prison, should be defined as the active striving for better conditions, or moving forward. A progressive prison system would focus on rehabilitation, not retribution. Progressive prison penalties wouldn’t put give drug crimes more emphasis than crimes of violence, nor would they give those who have nobody to rat on higher sentences than bigger criminals who can lie about others.
There’s still another response coming from Bruce Western (probably today) and then probably some back and forth. If you’re interested in the whole prison and race question, this is an excellent series to read.
Update: Bruce Western’s response piece Race, Crime, and Punishment is right on the money. His analysis is cogent and reasoned, and the studies back him up fully.

Because of the social costs of punishment Ö in the lost earnings and broken families of ex-prisoners Ö the seeds of recidivism are sown by incarceration itself. Ex-prisoners, without jobs or family ties, are more likely to re-offend. More fundamentally, the poor and minority communities that are disparately policed and punished come to view law enforcement, the courts, and the jails with suspicion and not as sources of legitimate order and support. We have few estimates of how much distrust in criminal justice institutions increases crime, though the effects may be very large.
The evidence I‰ve reviewed indicates that mass incarceration has produced a public safety that is short-term, expensive, and vulnerable to reversal. Mass incarceration deepens inequalities in economic opportunities and family life, and receives little positive support from the communities it regulates most closely. The failure of the system is due exactly to the kind of social exclusion that Glenn Loury described.