Dear Join Together,

Thank you for posting the summary (January 2, 2007, "Democratic Congress to Revisit Mandatory Minimums") of the Wall Street Journal report on likely Congressional review of federal mandatory minimum sentencing.

The objections from my friends at the IACP [International Association of Chiefs of Police] and FOP [Fraternal Order of Police] missed the key point of the proposed reform -- the quantity triggers for federal mandatory sentences are too low.

The question is not whether crack dealers hurt communities and should be prosecuted and punished -- no one in Congress questions that.

The question is whether the tiny federal quantity triggers misdirect federal agents toward low-level cases instead of the high-level cases they are uniquely empowered to pursue. Sadly, this is what the evidence demonstrates. I have written about this problem in somewhat more detail (PDF of crack cocaine trafficking paper). This is the paper that Federal District Judge Ruben Castillo of Chicago, a Vice-Chairman of the U.S. Sentencing Commission, asked the Justice Department witnesses about at the Sentencing Commission hearing on November 14.

We have had the federal mandatory minimums since 1986. The mission of DEA [Drug Enforcement Administration] is to make cocaine (and other drugs) scarce at the street. The proof of their scarcity is when the price goes up and the purity goes down. But the federal data shows that over the past twenty years cocaine and heroin have steadily gotten cheaper and more pure.

The U.S. Sentencing Commission data shows that federal drug cases are overwhelming low-level cases. And there are about as many crack users now as there were twenty years ago. Evidently there is a problem.

Most of the members of the IACP and FOP are local and state police who fight the crack trade in their communities. They do not have the authority or tools to disrupt international and nationwide cocaine traffickers who fill the cocaine pipeline to American cities. Stopping the pipeline is the job of the federal agencies, and they are failing miserably.

Getting the Justice Department focused on their job was the purpose of the 1986 mandatory minimums, which I helped write, but we blew it. It is that failure that keeps crack houses well supplied with cocaine, hurting the communities the IACP and FOP membership fight to protect.

The issue is not whether crack quantity triggers should be one one-hundredth of powder cocaine triggers, one-to-twenty, one-to-five, or simply one to one. The issue is whether 5, 50, 500 or 5000 grams of crack or powder cocaine are realistic measures of major federal level cocaine traffickers. The answer is obviously no -- not when cocaine pours into the country by the ton, without interruption. The purpose of reforms in 2007 should be to get the quantity triggers right.

IACP and FOP can argue that decade-long sentences are appropriate for the organizers of crack house and street corner crack operations which plague local neighborhoods. But do they deny that the proper role of federal drug enforcement is to focus on the highest level cocaine traffickers? Would IACP and FOP say that state and local police are so untrained or otherwise inadequate that they can't police the local drug trade in their own cities? Hardly. Sure, some local police need federal wiretap resources, but most investigative tools and undercover techniques are readily available to the tens of thousands state and local police working narcotics cases.

Perhaps in the 1940s, 50s and 60s, before the nationwide drug problem, before LEAA [Law Enforcement Alliance of America], before BJA [Bureau of Justice Assistance], the federal government had to be involved in making street-level narcotics sales because there was little expertise and few anti-narcotics resources at the state and local level. But that is not true today. We ought to ask why the federal drug agencies should ever be involved in investigating street-level drug sales and making street-level drug arrests.

Crack cocaine is usually prepared from powder cocaine shortly before it is retailed. If the proper federal role is prosecution of high-level traffickers, dismantling their organizations and shutting down the cocaine pipeline at the top, we could reasonably ask if there should ever be more than a handful of federal crack cases.

Twenty years ago Congress got caught up in the rhetoric and emotions about crack -- crack babies, crack violence, and crack addiction. Hopefully Congress will now analyze and focus on the proper federal role in fighting the drug traffic and not retreat to pontificating about how tough we would all like to be.

Eric E. Sterling, President
The Criminal Justice Policy Foundation
8730 Georgia Avenue, Suite 400
Silver Spring, MD  20910-3649
Tel: 301-589-6020 | Email
www.cjpf.org
www.justiceanddrugs.blogspot.com