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September 25, 2015

Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums

This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:

The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.

Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.

In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.

Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.

The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.

Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....

Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.

Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.

Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.

Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.

Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.

September 25, 2015 at 09:02 AM | Permalink


The former prosectors write "Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? " I agree. How about decriminallizing, conrolling and taxing all drugs.

Posted by: observer | Sep 25, 2015 4:49:48 PM

If the theory that much of the violence associated with the crack boom was actually due to the shake-out of new criminal markets and not actual drug use is correct then it should no longer matter much if the mandatory minimums are ditched. The criminal territories should be established by now and so there should no longer be as much reason for violence.

Posted by: Soronel Haetir | Sep 25, 2015 5:37:44 PM

"I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions."

Perhaps my experience is unique, but the overwhelming majority of the men I prosecuted for high-level drug trafficking crimes were not "fathers" prior to their sentences. They were "men" with children to multiple women, they were "men" who didn't financially support their children, they were violent "men," they were "men" who didn't get up and go to work a legitimate job in the morning, and they were "men" who served as terrible role models for their children. The federal prisons are generally not full of real fathers who were serving as positive role models for their children before they went to prison for being big-time drug dealers.

Posted by: ZCB | Sep 25, 2015 5:59:05 PM

"the men I prosecuted for high-level drug trafficking crimes"

That's the qualifier - for "high-level" trafficking. There are plenty of low-level dealers in federal prisons -- low-level dealers who are "real fathers" to their children, whether with multiple woman or not, and who are not violent. In nine years, I can recall defending in federal court a few high-level drug dealers and many more low-level, street corner dealers caught in hand-to-hand drug buys set up by confidential informants. And then who confess to agents who "just want to help you out" to street dealing a few grams every week for one year, which then jacks up their relevant conduct, and makes them on paper appear to be big-time dealers. Easy pickings for the DEA agents to justify their salaries and funding to the number-crunchers in D.C.

Posted by: Jay | Sep 25, 2015 6:10:35 PM

Your experience may be unique.

There are many families who are advocating sentencing reform and sentencing relief for their fathers, mothers, siblings, sons and daughters. They do not consider their loved one to be a throw away. Most inmates families feel that over-incarceration and over charging has damaged their family unit.

On a percentage basis, we incarcerate 7 citizens for every 1 that is incarcerated in other developed nations.

We must decide how much government we want, how much we want to pay for it and how much control we will give to the government over life style issues.

Posted by: beth | Sep 25, 2015 6:40:38 PM

I guess everybody defines things differently. To me, "real fathers" don't sell drugs because "real fathers" are good role models and they would never engage in conduct that could separate them from their children. Decisions have consequences.

Posted by: Hmmm | Sep 25, 2015 9:25:48 PM

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