In today’s tense climate surrounding issues of policing, accountability and fair treatment under the law, the coercive powers of federal prosecutors have gone largely unaddressed—particularly in the War on Drugs.
In Hard Bargains: The Coercive Power of Drug Laws in Federal Court, Mona Lynch, a social scientist and professor of Criminology, Law, and Society at the University of California at Irvine School of Social Ecology, exposes how prosecutors have used punitive federal drug laws as a form of “targeted warfare” against minority communities.
In a conversation with TCR staff writer Isidoro Rodriguez, Lynch explains why she believes such practices demonstrate the deep flaws in the federal court system.
The Crime Report: What motivated you to pursue this story?
Mona Lynch: [I was] infuriated by a policy that seems really over costly for [the gains that are claimed. Many of the [drug] cases going to federal court could just as easily be handled by state courts, and dealt with in ways much less punitively.
TCR: Your book covers four different districts across the United States. Is this representative of a national problem?
ML: This is a national issue. I picked those jurisdictions in order to really illustrate the ways that the same law operates in different places: the northeast; the southeast; a rural district; and a border district.
TCR: In the first part of the book you explore the motivations behind the federal drug laws enacted in the 1980s. Are things any different today?
ML: There are certain issues that pop up in our society and at different times that create panics. In the 1980s, the well-known story the 1986 death of [Boston Celtics star] Len Bias from a cocaine overdose really sort of sparked the panic around crack cocaine that underpinned a lot of the federal lawmaking in the 1980s.
What I’m trying to do in the book is show how once you open that door, once you create that legal infrastructure, and give prosecutors a lot of power, it creates the openings for bringing a lot of new cases in. It’s a sort of financial and institutional power. Basically, what we got after the 1980s was an incredibly expanded infrastructure at the federal level of money, energy, and people invested in the drug war. You have the law enforcement level, you’ve got the U.S. attorney’s level, and you’ve got an expanding court.
All these agencies grew; and institutions don’t like to shrink. That’s how we created this drug war monster….now we’re trying to think about how we’re going to reel it back. [But] it’s going to take more than just asking prosecutors and law enforcement to be more judicious. That’s not going to prevent the next panic and the next great expansion. I really wanted to [show] how the provisions that are given to legal actors who bring cases to court are central to understanding the expansions and abuses of power, and the mass incarcerations that came with it.
TCR: You write that many of those laws were, actually, contrary to research data. Are things any better today?
ML: A lot of public health research shows you could really address some of the drug problem by moving a lot of cases out of criminal courts, and that criminal courts are not the place to handle the problems of drug addiction.
It’s a good sign that there’s more reasonable discussion and thinking around criminal justice policy and lawmaking. Both at the federal and state level, there’s been a rise in evidence-based criminal justice. [But] the degree to which it’s showing up in law is probably less promising, certainly at the federal level. I just published an editorial in USA Today about the failure of Congress once more to reform the drug laws, despite rare bipartisan agreement. That’s frustrating, to say the least. [There] are federal prosecutors who don’t want to see the drug laws reformed.
TCR: In the book you discuss the concept of “historical weight,” which is a very much a grey area in terms of legality. How does this particular process play out in a federal court?
ML: Historical weight is used as evidence for the actual charge. A prosecutor could charge [a defendant with possession of] 280 grams of crack, which earns a ten-year mandatory minimum, in an indictment that could be based on the word of an informant. Under the conspiracy law in the federal courts, no drugs need to have been seized, seen, or weighed [to obtain a conviction]. An informant’s testimony can establish that ‘weight’ to prove the indictment. The defendant has a right to go to trial and to confront that witness, but, as I point out in the book, most people don’t go to trial— 97 percent of drug convictions are settled with a guilty plea.
That’s because [prosecutors] continue to use the threat of that weight to make the potential sentence worse. Confidential informants rarely get tested in court. Then, at sentencing, even if the defendant pleads out to an indictment that doesn’t specify the weight, that historical weight can still come back to haunt them.
Calculation of the guidelines does not require proof beyond a reasonable doubt; it’s a preponderance of the evidence [that counts]. That weight drives the sentencing guidelines, even after the person agrees to plead guilty.
TCR: With all the media attention on policing, accountability, and equal rights under the law, why have questionable practices such as historical weight seemingly fallen through the cracks?
ML: It is not quite as visceral. It’s not easy to grasp all the subtleties. It’s hard to see the risks and damages in a very clear cut way. When you’ve got eyewitnesses, or video, or bodies, that’s visceral; the horror of that is easy to grasp. But when we have a justice system that can ratchet up time and take away lives and throw people behind bars for decades, if not their whole life, based on these kind of legal tools [you have] a real fundamental justice problem.
TCR: Do minorities and the poor particularly suffer from aggressive prosecutors?
ML: Absolutely. There is no doubt that the federal system is targeted warfare. The state courts and local policing has a much more mass quality about it. At the federal level, at least in terms of the drug laws, in a lot of jurisdictions, it is really targeting. That targeting is very racialized and it’s very “spacialized.” So, it’s certain areas where people are going to be plucked from and targeted by local courts and local cops for these federal setups.
In the Northeastern District, one of the assistant U.S. Attorneys is working with local police to set people up regularly. I literally saw no white person who was targeted through those efforts picked up. This was primarily about African Americans, [but also] Latinos, from certain neighborhoods who are being set up to be brought to federal court.
TCR: In your border district example, you discuss the way the law handles undocumented immigrants who are caught with drugs. Please elaborate.
ML: Often-times, marijuana “backpackers” are carrying [drugs] payment to a coyote for guiding them across a very dangerous border. Some of them claim to have been coerced into doing it. In essence, I think the cartels have figured out how to exploit U.S. immigration policy and U.S. drug policy.
TCR: How do you measure the effectiveness of the outgoing Obama administration in changing the ‘hard bargaining’ approach by federal prosecutors?
ML: Obama worked very hard to start a new conversation on these things. Former Attorney General Eric Holder really tried to change the ethic among U.S. attorneys around drug prosecution. Pretty much every week now, people who have been sentenced to very long drug sentences are being granted clemency. This is a systematic attempt to undo some of the harms from the decades of the drug war. The only hope of continuing down the road that Obama and his administration took is some very committed members of congress on both sides.
TCR: What needs to be done?
ML: In some states, reform is happening. But we need a signal from our [national leadership]. It’s going to also take the president to be explicitly supportive of these efforts and to prioritize them and keep this on the table. We’ve heard talk about this that is all positive, and we need to follow through on that.
Isidoro Rodriguez is a staff writer for The Crime Report. He welcomes readers’ comments.