An article in yesterday’s New York Times examines federal drug sentences as part of the overall picture which shows that the U.S. leads the world in the number of people incarcerated, as well as in the length of those sentences. Part of the article looks at statistics showing how federal criminal sentences have exploded in the past two decades. Around 1980 there were 40,000 people serving time for federal crimes. That figure has expanded to almost 500,000 federal prisoners at the present time. The article points out that more than half of the people doing federal time were convicted of drug crimes. Here is a little background on how this amazing expansion of federal drug prisoners came to be.
When I was just out of law school in the early 1980’s, I worked for a couple of federal judges as a law clerk. It’s a great job where recent students help the judge and also get to see the legal system up close and in action. I always watched the criminal trials with interest. The drug cases tended to be prosecutions of large-scale dealers, importers and middle men. Cocaine seemed to be the drug that federal prosecutors focused upon.
I remember one case involving a pretty big dealer where the judge for whom I worked imposed what I thought was a rather harsh sentence, 15 years in prison. Later, the judge laughed when he explained that the guy would be out in under 5 years, maybe less. The reason was the old parole system used by the feds really only required the person to do about one-third of the actual sentence.
By the middle of the 1980’s, Congress and the Reagan Administration were going full bore in their oddly misnamed “War on Drugs.” Congress created mandatory minimum sentences, and in 1984, the extremely unfortunate Federal Sentencing Guidelines. Furthermore, the Reagan Administration convinced Congress to fund huge increases for the DEA and the Department of Justice. All those new DEA agents and young prosecutors needed to do something to justify their salaries, so lo and behold, the number of drug prosecutions shot skyward. However, going after drug kingpins is long and laborious work. By the 1990’s, we were mostly seeing street-level dealers getting prosecuted in federal court. Only rarely have I seen a really big federal drug case in the past 15 years or so.
However, while the dealers are smaller, the sentences are now much longer. The mandatory minimum sentences, along with the ridiculous 100:1 ratio of punishments for crack versus powder cocaine, resulted in amazingly unjust sentences. Remember the 15 to serve 5 sentence imposed by my old judge on the high-level dealer? Nowadays, the kid who makes a couple of hundred dollars a week selling will get 10 years to serve, with no parole and no hope of early release (except for a little off for good behavior.) Other sentences likewise are far longer. I had a case a couple of years ago where my client had two prior drug convictions. This man was an addict, and a young drug dealer convinced the addict to carry a two ounce package across the street. The combination of the mandatory minimums along with some amazingly harsh rules for repeat offenders meant that this man was required to serve 30 years! And this for a low-level addict merely carrying the drugs in the hope of earning a small hit to fee his habit!
Our nation now incarcerates more people for drug crimes than any other country on earth. This has been an amazing waste of time, money, and most importantly, human lives. Lawyers who recognize how we came to this point in our nation’s history need to tell the sad story of how all this came about. Only when the people realize how unproductive this all is can we hope to bring some sanity back to this aspect of our criminal justice system.