The new drug war’s ‘big fish’ myth
Attorney General Jeff Sessions this month announced that the Justice Department will begin charging defendants in federal cases with the stiffest possible sentences, rescinding an initiative by former Attorney General Eric Holder. That policy had prosecutors take offenders’ individual circumstances into consideration in order to reduce the use of especially harsh mandatory sentences against less serious offenders.
In speeches explaining the shift, Sessions has suggested that only “big fish” get prosecuted federally. “These are not low-level drug offenders we, in the federal courts, are focusing on,” he said. “These are drug dealers, and you drug dealers are going to prison.”
But it simply isn’t true that federal courts net only big fish. I know because I served as a federal public defender in Manhattan in the 1990s, during the height of the drug war. My clients included Jose, a 17-year-old foster kid who steered customers around the corner to a drug dealer whose real name he didn’t even know. His cut of the profits? Regular Happy Meals at McDonald’s, and a new pair of sneakers.
Alicia, another client of mine, was a homeless woman who lived in a cardboard box on Boston Post Road. Alicia traded sex for drugs to support her addiction, and landed in federal court after she had the misfortune of selling a half-gram of crack to an undercover officer on a socalled “federal day” — the one day of the month when the Manhattan DA turned all drug cases over to the feds, where sentences were stiffer.
Jose and Alicia were not just little fish, but minnows. Cases like theirs constituted half my caseload. And like most of my drug clients, both were charged with “conspiracy” to distribute a controlled substance, and as a result faced 10 to 12 years in prison.
Such charges were an unjust and indefensible perversion of justice, punishing struggling people who were nothing like the proverbial kingpins the system purports to target.
The idea of returning to those charging practices is even more unjust and indefensible because the progress we’ve made over the past years proves that the “tough on crime” policies that characterized the big, bad days of the drug war simply do not work.
Many years ago, it used to be that federal prosecutions were reserved for serious financial and interstate crimes like bank robbery, insider trading and organized crime. Then, in the 1980s, members of Congress desperate to demonstrate toughness fell over themselves to elevate garden-variety crimes to federal cases — most especially drug crimes.
In an especially galling moment in our racial history, in 1986 Congress passed legislation penalizing crack cocaine — which is used and abused more frequently by black people — 100 times more harshly than powder cocaine, which is more typically used and abused by white people.
This combination of broader criminal jurisdiction and stiffer sentences had a predictable result: The federal prison population exploded sevenfold, from a relatively stable 25,000 prisoners from 1925 through 1985, to 175,000 prisoners by the time President Barack Obama took office. By 2015, fully half of federal prisoners were drug offenders, three-quarters of whom were black or Hispanic, even though national surveys show that blacks and whites use and sell drugs in equal measure.
In 2014, the year after Holder directed federal prosecutors to moderate charges in low-level cases, the National Academy of Sciences declared that levels of incarceration in the U.S. had far surpassed the point of diminishing returns. With crime at an all-time low, it recommended that lawmakers reexamine policies requiring long sentences, which were deepening poverty and weakening the social fabric in the poor, minority neighborhoods hardest hit.
Across the country, politicians have come together in a rare bipartisan consensus to drain bloated prisons that waste human lives and taxpayer dollars. In the past eight months alone, Oklahoma, New Mexico, California, Illinois and Iowa have all reduced sentences for drug and other crimes in favor of treatment, mental health counseling and other interventions that better prevent crime. Police chiefs and prosecutors are onboard.
Given all of this, the Justice Department’s policy represents a giant step backward — one that thwarts the progress advanced by committed professionals in the criminal justice system, and that poor communities of color, in particular, cannot afford.