Mandatory Minimums Don’t Deserve Your Ire Jeff Sessions’s policy won’t lock up harmless stoners, but it will help dismantle drug-trafficking networks. By Heather Mac Donald
https://www.wsj.com/articles/mandatory-minimums-dont-deserve-your-ire-1495754009
Attorney General Jeff Sessions is being tarred as a racist—again—for bringing the law fully to bear on illegal drug traffickers. Mr. Sessions has instructed federal prosecutors to disclose in court the actual amount of drugs that trafficking defendants possessed at the time of arrest. That disclosure will trigger the mandatory penalties set by Congress for large-scale dealers.
Mr. Sessions’s order revokes a 2013 directive by former Attorney General Eric Holder telling prosecutors to conceal the size of traffickers’ drug stashes so as to avoid imposing the statutory penalties. Contrary to the claims of Mr. Sessions’s critics, this return to pre-2013 charging rules is neither racist nor an attack on addicts.
The impetus to eliminate open-air drug markets has historically come from law-abiding residents of minority neighborhoods, as books by both Michael Fortner and James Forman have documented. In 1973 a Harlem pastor named Oberia D. Dempsey called for mandatory life sentences for heroin and cocaine dealers, because the “pusher is cruel, inhuman and ungodly. . . . He knows that he’s committing genocide but he doesn’t care.” In 1986 Brooklyn Congressman Major Owens introduced a bill to increase federal crack penalties. “None of the press accounts really have exaggerated what is actually going on,” he said. In 1989 Atlanta Mayor Maynard Jackson pledged to make “the drug dealer’s teeth rattle” and proposed seizing dealers’ assets.
Today people living under the scourge of open-air drug dealing still face the constant threat of violence. Only months ago Chicago mourned 11-year-old Takiya Holmes, struck by a stray bullet fired by a 19-year-old marijuana dealer. Former FBI Director James Comey once described the aftermath of a raid in northwest Arkansas that busted 70 drug traffickers. “As our SWAT teams stood in the street following the arrests of the defendants,” he said in a 2015 speech, “they were met by applause, hugs and offers of food from the good people of that besieged community.” The town was predominantly black, and so were nearly all the drug dealers.
The argument that Mr. Sessions’s order penalizes addiction also falls flat. For a mandatory federal sentence to come into play, a dealer has to be caught with an amount of drugs that clearly reveals large-scale trafficking. To trigger a mandatory 10-year sentence, a heroin trafficker, for example, must be caught with a kilogram of the drug, a quantity that represents 10,000 doses and currently has a street value of at least $100,000.
No one who gets caught smoking a joint is going to be implicated by Mr. Sessions’s order. The number of federal convictions for simple possession is negligible: only 198 in 2015. Most of those were plea-bargained down from trafficking charges, usually of marijuana. Last year the median weight of marijuana possessed by those convicted of simple possession was 48.5 pounds. To trigger a mandatory penalty for marijuana trafficking, a dealer would need to be caught with more than 2,200 pounds of cannabis.
Finally, the idea that Mr. Sessions’s memo will exacerbate racial disparities in prison does not stand up to the facts. Drug enforcement is not the cause of those disparities. In 2014, 37.4% of state and federal prisoners were black. If all drug prisoners—who are virtually all dealers—had been released, the share of black prisoners would have dropped to 37.2%. What truly causes racial disparities in incarceration is racial disparities in violent crime.
Likewise, it is America’s higher violent-crime rates overall, not drug enforcement, that cause the country’s higher incarceration rates compared with other Western industrialized countries. The U.S. homicide rate is seven times the average of 21 Western developed nations plus Japan; the U.S. gun homicide rate is 19.5 times that average. Americans ages 15 to 24 kill with guns at nearly 43 times the rate of their counterparts in those same industrialized nations.
Prison is a bargain compared with the costs of crime. In 2010, the last year for which a full breakdown of corrections spending is available, the states and the federal government spent $43 billion on confining prisoners. By comparison, Americans spend $7.4 billion on Halloween.
The damage done by uncontrolled crime, including open-air drug markets, dwarfs the costs of incarceration. The federal Department of Housing and Urban Development alone spent $88 billion in 2014 on grants to troubled neighborhoods. That’s a minute fraction of what federal, state and local authorities spend responding to crime and its cascading effects through communities and their economies.
Mandatory minimum sentences are a valuable tool for inducing drug dealers to cooperate with prosecutors in identifying fellow members of large drug-trafficking networks. Under Mr. Sessions’s directive, prosecutors will retain the discretion to avoid the mandatory minimum if the facts of a case warrant. The Sessions order restores transparency to prosecution and recognizes the toll that street drug markets take on poor Americans.
Ms. Mac Donald is a fellow at the Manhattan Institute and the author of The War on Cops.
Appeared in the May 26, 2017, print edition.
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