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A Federal Judge Speaks up about the Tragedy and Shame of our Penal System
I was very glad to see this editorial by a federal judge, Mark Bennett. As he notes at the end of his article, “If we don’t speak up, who will?”:
Growing up… I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA. Never could I have imagined that… I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts… Drug kingpins? Oh yes, I’ve sentenced them, too… But I can count them on one hand… I am greatly conflicted about my role in the “war on drugs.”
Crack defendants are almost always poor African-Americans… Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies – which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth…
I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges… Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth… Yet all of them faced mandatory minimum sentences of sixty or 120 months… In the federal system, there is no parole…
Crack defendants are almost always poor African-Americans… Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies – which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth…
I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges… Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth… Yet all of them faced mandatory minimum sentences of sixty or 120 months… In the federal system, there is no parole…
On the consequences and lack of value of mandatory minimum sentences:
Several years ago, I started visiting inmates I had sentenced in prison…These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around… If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction…
On the unpopularity of mandatory minimum sentences:
For years I have debriefed jurors after their verdicts… and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower… These jurors think the criminal justice system coddles criminals in the abstract – but when confronted by a real live defendant… they never find a mandatory minimum sentence to be a just sentence.
Thank you very much, Judge Bennett.
With that said, I’ll add some of my own opinions about locking people up for years for victimless crimes.
Reasons why we should abolish the criminalization of victimless acts
The destruction of lives
The clearest and most obvious reason for taking victimless crimes off the books is the hundreds of thousands of lives they destroy directly. Glen Greenwald puts it succinctly:
For us to collectively decide that the consensual, adult use or sale of intoxicants will be criminalized, means we are agreeing that hundreds of thousands of our fellow Americans will experience life-destroying calamity. These POWs will be ripped from their communities – and frequently from their children – for years, decades and for life, pursuant to mandatory sentencing schemes as Draconian as those in any dictatorship…
Instead of being with their families, these citizens will be confined among a population teeming with violent predators, under harsh and terrifying conditions. Conditions in which, especially for the disabled, their health often cannot be maintained…
Instead of being with their families, these citizens will be confined among a population teeming with violent predators, under harsh and terrifying conditions. Conditions in which, especially for the disabled, their health often cannot be maintained…
Then there’s the rape and assault of these non-violent “criminals”. Tom Cahill, President of Stop Prisoner Rape, explains:
I credit the war on drugs with the tremendous increase in prisoner rape. Most prison rape victims are in for minor nonviolent offenses. The victim profile is a young adult… confined for the first time for a minor victimless crime such as possession of a little too much marijuana – and too poor to buy his freedom. . .
These men and boys who are raped in prison will usually return to the community far more violent and antisocial than before they were raped. Some of them will perpetuate the vicious cycle by becoming rapists themselves…
These men and boys who are raped in prison will usually return to the community far more violent and antisocial than before they were raped. Some of them will perpetuate the vicious cycle by becoming rapists themselves…
Adding to the damage done to individuals is the damage that these laws do to families. Perhaps the major reason for single parent households in our country today is the huge number of imprisoned men. This perpetuates a cycle of crime and incarceration over the generations.
Wrecking the lives of the people of other countries
The United States has pressured many countries to collaborate in its “War on drugs”, particularly with respect to preventing the production and export of drugs from those countries. This often involves aerial spraying of farmland (especially in Colombia) suspected of growing drugs, and the consequent destruction of the livelihood of farmers.
The promotion of real crime
We should have learned our lesson from our experiment with prohibition, which spurred the rise of organized crime. Whenever a widely desired something is criminalized, its value will rise exponentially, while the desire for it will remain high, thus creating a need for an organization to fulfill that desire. Peter McWilliams explains how this contributes to the rise of organized crime, including narco-trafficking:
If fulfilling that desire is a crime, that organization will be organized crime. Operating outside the law as organized criminals do, they don't differentiate much between crimes with victims and crimes without victims. Further, the enormous amount of money at their disposal allows them to obtain volume discounts when buying police, prosecutors, witnesses, judges, juries, journalists, and politicians…. Once consensual crimes are no longer crimes, organized crime is out of business.
Especially when the forbidden something is an addictive drug, its excessive cost will incite some people to commit crimes they would otherwise not have committed, such as robbery. Crimes committed for this reason can then become habit forming, leading to more crimes.
The time and money that goes into pursuing and punishing victimless crimes drains money away from crime prevention and rehabilitation programs which could otherwise contribute to reducing real crime. It drains money from the criminal justice system which could otherwise be used to pursue real crime. And it even sometimes leads to letting real criminals out of prison to make room for the victimless “criminals”. McWilliams describes the problem:
Real criminals walk free every day to rape, rob, and murder again because the courts are so busy finding consensual criminals guilty of hurting no one but themselves. And even if the courts could process them, the prisons are already full; most are operating at more than 100% capacity. To free cells for consensual criminals, real criminals are put on the street every day.
Contributions to racism and classism
The racial and class disparity in the United States for imprisonment for drug offenses is well known. Though the Federal Household Survey (See item # 6) indicated that 72% of illicit drug users are white, compared to 15% who are black, blacks constitute a highly disproportionate percent of the population arrested for (37%) or serving time for (42% of those in federal prisons and 58% of those in state prisons) drug violations.
Whenever and wherever victimless crimes are prosecuted and punished, the opportunity for arbitrary enforcement of the law based on racism or other nefarious factors is magnified tremendously.
Victimless crimes are unconstitutional
Victimless crimes are not specifically mentioned in our Constitution. Yet, they are intimately related to abuses of our Fourth Amendment. For one thing, warrantless searches and seizures have often been used to obtain evidence of victimless crimes. Secondly, warrantless searches and seizures and victimless crime laws are often pursued for the same reasons: as a means of wielding political power over selected portions of our population. Furthermore, a victimless crime law seems inconsistent with the idea of “The right of the people to be secure in their persons…” Privacilla elaborates on this:
Victimless crime laws do threaten the privacy of innocents because of the monitoring and investigation they require for enforcement… To enforce this kind of crime law, officials must engage in extensive monitoring, wiretapping, and surveillance of suspects and the public. The existence of victimless crimes tends to erode Fourth Amendment protections that are there to protect the privacy of innocents….
In fact, a US Supreme Court decision, Lawrence v. Texas, was argued partially on this basis. The case involved a Texas law that made consensual sex between homosexuals, even within the privacy of their own homes, a crime. The Supreme Court ruled against the state, striking down that law. It is not clear to me whether the Fourth amendment was part of that decision, but the plaintiff did pursue the case based in part upon Fourth Amendment issues, introducing arguments against victimless crimes:
Liberty cannot survive if the legislature demands that people behave in certain ways in their private lives based on majority opinions about what is good or moral…And of course, the Founders believed wholeheartedly that majorities had no right to impose their beliefs on minorities. In Federalist 10, Madison articulated his concern…
It could also be argued that victimless crimes violate our First Amendment restriction against laws “respecting an establishment of religion”, since religious values often provide the foundation for these laws. And certainly the due process clause of our Fifth Amendment is routinely violated by victimless crime laws, especially given the fact that they are so unequally enforced against the poor and minorities.
Cost
Nobody can say that we are winning our “War on Drugs”, despite the 40 billion or so dollars that we spend on it annually. Drug use in the United States is little different today than it was when the “War on Drugs” began.
McWilliams elaborates further on the cost:
We're losing at least an additional $150 billion in potential tax revenues… moving the underground economy of consensual crimes aboveground would create 6,000,000 tax-paying jobs.
The withholding of medical treatment
Many illicit drugs have important medical uses, but because of the “War on Drugs” their use for medical purposes is either completely outlawed or severely curtailed. Marijuana provides exceptionally good symptomatic relief or treatment for a wide range of medical conditions, for which there is no better or even comparable alternative treatment. Yet the pharmaceutical industry and the prison industry (among others) have lobbied extensively against the legalization of medical marijuana, and the federal government has complied by over-ruling state enacted medical marijuana laws. This adds to the huge profits of the pharmaceutical industry while denying millions of Americans symptomatic relief from serious diseases such as cancer or AIDS.
Especially important is the fact that many illicit drugs are highly effective against pain. Because of taboos against potentially addicting drugs, many people are needlessly denied
the pain relief that they need to make their lives bearable, even as they are dying.
Highest incarceration rate in the world
The end result of all this is that the United States has for many years had the highest incarceration rate of any country in the world. A 2008 article in The New York Times notes that with only 5% of the world’s population, one quarter of all the world’s prisoners are U.S. prisoners. The prevalence of incarceration in our country was 751 people per 100,000 population – which means that one percent of all our adults were incarcerated. Russia was a distant second, with 627 people incarcerated per 100,000 population:
Judge Bennett ended the editorial with which I started this post by calling for more judges to speak out about this issue:
Many people across the political spectrum have spoken out against the insanity of mandatory minimums… In a 2010 survey of federal district court judges, 62 percent said mandatory minimums were too harsh. Federal judges have a longstanding culture of not speaking out on issues of public concern. I am breaking with this tradition not because I am eager to but because the daily grist of what I do compels me to… I hope more of my colleagues will speak up… This is an issue of grave national consequence. Might there be a problem when the United States of America incarcerates a higher percentage of its population than any other nation in the world.
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Great OP. A heart sick K&R
