The Laws that Betrayed Their Makers: Why Mandatory Minimums Still Exist

In May 2013, Katie,1 a high school junior in Oregon, got a text from her friend Morgan. Both young women were addicted to heroin, and Morgan had been in an inpatient treatment program for two months. Morgan explained that she had earned a weekend pass home, and she wanted to try heroin one last time. Katie agreed to sell her a quarter-gram, one-fourth the weight of a paper clip. But Morgan's body had lost tolerance for the drug during her time in treatment. When she took the dose alone in her bedroom, she stopped breathing. By the time family members found her and called 911, her pulse had nearly stopped, and she suffered brain damage and paralysis. Katie was devastated. The police quickly found her texts on Morgan's phone and arrested her. The prosecutor warned Katie that she was facing a mandatory minimum of 20 years in prison.

Congress wrote mandatory minimum laws in the 1980s to send a clear message to drug dealers: if you are caught with a certain amount of drugs, no matter the circumstances, you will go to prison for a long time.2 Two ounces of methamphetamine, for example, means ten years in prison. If it's your third such crime, that's life in prison. Normally, choosing a fair sentence is the judge's job, and no reasonable judge would send 17-year-old Katie to prison for 20 years for agreeing to sell a quarter-gram of her personal heroin supply to a friend. But since selling heroin that causes "death or serious injury" is a specific mandatory minimum offense, if the prosecutor charges Katie with the offense and she is found guilty, the judge must sentence her to 20 years.3

This is the conventional explanation of mandatory minimums, yet it is incomplete. There is an important reason why it has taken Congress 30 years to even consider reforming these laws. The second half of Katie's story reveals why we have really kept mandatory minimums around for so long, and why we need to get rid of them.

Katie's prosecutor did not have to charge her with the 20-year-minimum offense--she could have charged her with possession of a quarter-gram of heroin, which carries no mandatory minimum, or dismissed her case entirely. In fact, she never intended to charge Katie with the 20-year offense. After threatening Katie with it, she added that if Katie turned in her supplier, she would reduce Katie's charges and let her off without any prison time at all. Katie immediately turned in her supplier, who turned in his supplier, who led the police to a man named German Tovar-Ramos, who was caught with a kilogram of heroin and sentenced to 17 years in prison.4

In this way, rather than serving Congress's purpose, federal mandatory minimum drug laws actually function as a prosecutor's tool of interrogation. Since the same prosecutors who select the charges are also trying to extract information, they threaten defendants with wildly disproportionate mandatory minimums in order to force them to cooperate. They are open about this practice. The President of the National Association of Assistant U.S. Attorneys protested in July that if Congress reduces mandatory minimums, "prosecutors would lose a tool to extract information."5

They omit the fact that mandatory minimums are primarily useful for extracting information from the low-level offenders. If the judge were in charge of sentencing, Katie would not have faced serious prison time. The prosecutor could only threaten her with 20 years in prison because the mandatory minimum took away the judge's discretion. By contrast, Tovar-Ramos, caught with a kilogram of heroin, could expect any judge to give him decades in prison--so mandatory minimums gave him little extra incentive to cooperate with the prosecutor.

There are two problems with threatening long sentences to extract cooperation from low-level drug offenders. First, this strategy is ineffective in impacting the drug trade. Second, it inflicts immense collateral damage on innocent people and low-level offenders, while letting the guiltiest offenders off more easily--the opposite of what Congress intended.

First, how can I say this coercion is ineffective in fighting the drug trade? The new poster child for mandatory minimum drug laws, in fact, is the investigation that led from Morgan Brittain's overdose to Tovar-Ramos. It was trumpeted as a success not only by supporters of mandatory minimum laws, but also by the people who typically oppose them. Senator Charles Grassley, who is sponsoring legislation to reduce federal mandatory minimums, wrote: "The story of Morgan Brittain is a powerful example of how mandatory sentences, when used as intended, can be instrumental in tackling sprawling criminal organizations and bringing justice to victims."6

But under closer inspection, even the poster child is a failure. What none of the story's promoters mentioned was that a year earlier, Tovar-Ramos had been picking strawberries on a farm in Oregon. He was deported and, desperate to return to the U.S., came back as a drug mule. For ferrying loads of heroin, Tovar-Ramos earned $24,000 per year, barely above the poverty line.7 In the cartel's heroin distribution system, he was a manual laborer, not the "high-level criminal" that politicians claimed.

In fact, threatening those at the end of the supply chain rarely leads to kingpins, because today's drug organizations are built like terrorist groups. If they operated through a centralized hierarchy, prosecutors would quickly bring down the organization by threatening defendants with long sentences to "flip" them into informants.8 The drug enterprises that survive today are independent cells connected only to their immediate suppliers.9 Like terrorist groups, they have adapted to survive a powerful enemy that consistently captures operatives and goes to extremes to extract information from them. So even when we threaten low-level drug offenders with decades in prison, they can only bring us to their immediate associates--not the kingpins.

This strategy is also too time-consuming to make a dent in the drug trade. State and local prosecutors--ninety percent of the total--do not have time to follow the supply chain; they are scrambling just to convict the flood of small-time drug offenders the police bring them. The only prosecutors who can dedicate hundreds of hours to flipping informants are the elite federal prosecutors, whose mission is to "uncover and dismantle criminal organizations of national and international scope."10 We pay for intensive federal investigations so our nation's top prosecutors can pursue terrorists, mafia dons, gang leaders and criminal CEOs. They should not be using these scarce resources to try to flip Katie and take down one drug cell among roughly 50,000 nationwide.11

Ultimately, law enforcement cannot stop the supply of heroin because of the American demand for heroin. Trafficking heroin is immensely profitable, since the drug is worth eight times its weight in gold.12 Trafficking is also easy--the nation's entire annual supply, which sells on the street for $27 billion, would fit inside a single eighteen-wheeler; $10 million worth would fit in a child's backpack.13 As a result, former federal prosecutor John Kroger writes, "If you bust a cartel's local representative, they quickly send a replacement. And if you take out a whole distribution cell, a new crew will quickly pop up to seize its turf."14 Even if we threatened every drug dealer with a mandatory life sentence, teenagers like Katie and Morgan would still be able to buy doses of heroin on the street corner for less than $20.

Imprisoning the Innocent and Rewarding the Guilty

Second, this interrogation strategy is inhumane. It destroys the lives of those who do not cooperate--including many who have done little to nothing wrong--while rewarding the guiltiest offenders.

In 1992, a federal prosecutor in Oregon named Deborah Dealy-Browning was prosecuting a group of men who manufactured and sold methamphetamine. She offered to give them ten years in prison if they pled guilty. Though they faced thirty years in prison if they lost at trial, they refused to accept her plea offer. Determined to avoid a lengthy trial that she might lose, Dealy-Browning pushed Barbra Scrivner, the wife of one of the ringleaders, to testify against her husband. Finally, Dealy-Browning threatened that if Barbra wouldn't testify, she would charge her as a co-conspirator.

Barbra refused. She had nothing valuable to give and knew that she was not guilty of the charges. She considered it an empty threat. A week after Barbra's daughter turned two, Dealy-Browning had her arrested and charged her with conspiracy to manufacture and distribute methamphetamine. At trial, Barbra received the mandatory minimum prison sentence--30 years.

Barbra's story seems unbelievable, because few people realize how much power prosecutors have to coerce defendants, even those not guilty as charged.

How could Dealy-Browning charge Barbra with her husband's crime? Conspiracy laws allow prosecutors to charge the least guilty member of a criminal conspiracy with all of the crimes committed by everyone in the group--even if the least guilty member is the wife who just took a phone message. These laws were designed to allow prosecutors to bring down kingpins who never got their hands dirty, but today federal prosecutors use conspiracy in almost every drug case15 -- sometimes to force cooperation from family members who were hardly involved.

Why did the jury convict Barbra of crimes she did not commit? When Barbra refused to cooperate, Dealy-Browning did not want to back out of her threat to send Barbra to prison for decades, because that would damage her credibility. So she did everything she could to convict her, including offering other offenders deals to testify against her. At Barbra's trial, low-level drug dealers whom she had never met took the stand and testified that she had sold them drugs.

Barbra Scrivner poses with her daughter Alannah while incarcerated in Dublin, CA.
Source:
2016-05-02-1462221718-4037326-BarbraScrivnerAlannah.jpg

This is not an isolated case argued by a renegade prosecutor. Dorothy Gaines16 and Clarence Aaron17 also refused to testify against their families, went to trial on conspiracy charges where low-level offenders gave false testimony against them, and received decades-long sentences. The phenomenon of women receiving harsh sentences for their partners' crimes is so common that it has a name: "the girlfriend problem."18

Though Barbra, Dorothy, and Clarence were granted clemency and released after many years in prison, the prosecutorial strategy that put them behind bars is still considered completely acceptable. Federal appeals courts have explicitly approved of prosecutors threatening defendants' wives with charges that are rarely prosecuted, solely to force the defendants to cooperate.19

Why would federal prosecutors threaten family members, knowing that they might have to follow through on those threats? Prosecutors see that the War on Drugs is not working, and many conclude that they need to fight the enemy more aggressively. They justify harm to the families as collateral damage. They are also extremely ambitious people, and they need convictions to earn promotions and grant money. Since their offices choose which cases to take on, they are expected to win. If a case does not go as planned, they become desperate. And there is nothing holding them back--the only thing preventing them from threatening and convicting offenders' family members is their own conscience.20

Meanwhile, the higher-level offenders, who have real information to trade, often end up with the shortest sentences--the opposite of what Congress intended. As retired federal customs agent and Law Enforcement Against Prohibition (LEAP) speaker Raymond Strack told me, "I can't tell you how many times we arrested someone and they immediately said, 'I have information for you.' High-level offenders know they need to provide substantial assistance if they get caught, so they go out of their way to learn helpful information just in case."

The actual offenders also offer to provide false information. One of Barbra's husband's actual accomplices, a woman named Valerie, agreed to testify against all of the others--including Barbra. While Barbra received 30 years, Valerie was rewarded with a ten-year plea deal. Christine Rogers, a former correctional officer, retired police officer and speaker for LEAP, worked at a women's prison in Massachusetts. She told me, "Throughout the prison, I met women who were there because they had drug-dealing boyfriends. Most of the time, their boyfriends had made a [plea] deal and were already back on the street." Since the bigger fish know how the system works, prison sentences often bear an inverse relationship to guilt.

The Solution

I am not arguing that we should prevent federal prosecutors from rewarding defendants who cooperate. Prosecutors need some capacity to reward scared low-level defendants for testifying against their bosses. But when Dealy-Browning can threaten to send Barbra to prison for 30 years and take away her daughter if she refuses to cooperate, we have crossed the line between persuasion and coercion. Surely we should not ruin lives and sacrifice our principles in pursuit of meaningless, low-level drug cases. As former federal prosecutor Paul Butler writes, "Sometimes... the cost of obtaining inside information exceeds the value of the information itself."21

The first steps are clear. Congress must get rid of mandatory minimum drug laws. Congressman Grassley and his colleagues need to recognize that federal prosecutors use mandatory minimums primarily to coerce low-level offenders, that this is not what Congress "intended,"22 and that it is ineffective and inhumane.

The Obama administration's Department of Justice (DOJ), which is in charge of the federal prosecutors, needs to stop turning a blind eye to this coercion. DOJ spokesperson Ellen Canale has stated that sentencing enhancements "should not be used to coerce defendants."23 Yet DOJ says nothing while prominent federal prosecutors openly defend using mandatory minimums as tools of coercion. DOJ does nothing to stop prosecutors from convicting defendants' innocent family members on conspiracy charges. Only DOJ has the power to discourage federal prosecutors from using inhumane coercion to win ineffective low-level drug cases.24 It must use this power.

Take Action
  • The next time someone mentions mandatory minimums to you, tell them the secret federal prosecutors aren't even trying to keep: they use mandatory minimums to coerce cooperation--and they're ineffective and inhumane.
  • Read the stories of more women who are still incarcerated for their partners' crimes because they refused to give in to prosecutorial coercion: from CAN-DO Clemency and Families Against Mandatory Minimums
  • Tell the head of DOJ, Attorney General @LorettaLynch: Federal prosecutors are using inhumane coercion to win ineffective low-level drug cases. Stop turning a blind eye.

Sources

1. In order to protect Katie, her real name is not public information.

2. Congress's original intentions are explained in this U.S. Sentencing Commission report.

3. All federal mandatory minimum sentences are listed in this chart, created by Families Against Mandatory Minimums.

4. The case became famous through this Washington Post article.

5. NAAUSA President Steve Cook's words were reported in U.S. News.

6. Senator Grassley wrote this letter in response to the article on Morgan Brittain.

7. Tovar-Ramos's role was investigated by this Salon article.

8. Former federal prosecutor John Kroger explains their structure in his book Convictions (129).

9. Reports from the California Department of Justice and the Congressional Research Service note the structural similarity to terror cells.

10. As described by former federal prosecutor John Kroger (101).

11. John Kroger estimates that there are 50,000 drug wholesalers in the U.S. (336).

12. According to price information from the White House report "What America's Users Spend on Illegal Drugs: 2000-2010."

13. My calculations are available on this Criminal Justice Policy Foundation webpage.

14. Kroger, 335.

15. Federal Judge Richard Bilby wrote that "Every multi-party drug case, even if it is two mules packing it across the border, contains a conspiracy count."

16. Read my own profile of the Dorothy Gaines case on the Everyday Feminism website.

17. Clarence Aaron's story is featured on this PBS Frontline show Snitch.

18. See for example this ACLU press release.

19. Kroger, 439.

20. For a review of the lack of accountability for prosecutorial misconduct, see Bruce Green and Ellen Yaroshefsky's 2016 article in the Notre Dame Law Review.

21. From Paul Butler's book Let's Get Free.

22. From Senator Grassley's letter in response to the article on Morgan Brittain.

23. Ms. Canale provided this statement to National Public Radio in response to NPR's coverage of a Human Rights Watch report on prosecutorial coercion.

24. Read Eric E. Sterling's article "Getting Justice Off Its Junk Food Diet" to learn how DOJ can effectively stop federal prosecutors from going after low-level cases.