Sessions is proposing use of mandatory minimum sentences by prosecutors
By Dean A. Dabney
Georgia State University
(THE CONVERSATION) — The United States has been waging a war on drugs for nearly 50 years.
Hundreds of billions of dollars have been spent on this long campaign to thwart the production, distribution, sale and use of illegal drugs. This sustained investment has resulted in millions of drug offenders being processed through the American criminal justice system. It has also influenced crime control strategies used by American police.
Under President Barack Obama, there was a period of reform and moderating of tactics. But President Donald Trump’s attorney general, Jeff Sessions, is announcing plans to return to “law and order” approaches, such as aggressive intervention by law enforcement and use of mandatory minimum sentences by prosecutors.
I recently co-authored a book with University of Louisville criminal justice professor Richard Tewksbury on the role of confidential informants. In my view, a return to a “law and order” approach would undo recent gains in reducing crime rates as well as prison populations and would further strain tense police-community relations.
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Drugs are different
Unlike violent or property crimes – which usually yield cooperative victims and witnesses – police and prosecutors are at a disadvantage when fighting drugs. Drug users don’t see themselves as crime victims or their dealers as criminals. Police thus have limited options for identifying offenders.
Alternatives include the use of undercover operations or conducting aggressive crackdown operations to disrupt the market in real time. But sneaking up on or infiltrating secretive and multilayered drug organizations is not easy to do, and usually produces only low-level offenders. Poor police-community relations don’t help. Heightened enforcement and punishments have made matters worse by increasing the secrecy and sophistication of the illegal drug market and forcing police to develop criminal intelligence on offenders.
So how do police gather criminal intelligence on drug crimes?
The most honorable way is to rely on law-abiding sources who see the criminal activity and feel compelled to report it to the police in order to stop the problem.
The second option is for police to turn to a paid informant who is familiar with the drug operations to set up a buy or inform on the criminal activities of others in exchange for money.
A third option is to apprehend known drug offenders and coerce them into divulging information on higher-ups in exchange for a lighter sentence. We call these folks “indentured informants” because they “owe” the police information. If they don’t follow through on their end of the deal, they face the weight of criminal prosecution, often through heavy mandatory minimum sentences.
As police-community relations have eroded over time, police have slowly but surely increased their reliance on criminal informants – especially to develop cases on higher-level criminals.
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Consequences of coercive tactics
Mandatory minimum sentences serve as a strong motivator to snitch. It has become the “go-to move” for authorities.
Not surprisingly, drug dealers fight back against this coercive method of getting evidence with a “stop snitchin’” campaign. Retaliatory violence often erupts, and it becomes harder for police to get evidence from both criminal and civic-minded informants who fear reprisals from drug dealers. Anger grows against police who are perceived as not following through on promises to protect witnesses or clean up neighborhoods.
There exists yet another wrinkle in the equation. Reliance on harsh drug sentences and confidential informants has become part and parcel to how other types of criminal cases are solved.
Witnesses or persons privy to information in homicide or robbery cases are routinely prodded into cooperating only after they find themselves facing a stiff penalty due to their involvement in an unrelated drug case. Here again, this produces short-term gains but long-term complications for criminal justice authorities as states move to decriminalize or legalize drugs. What happens when prosecutors working violent or property crime cases can no longer rely on the threat of mandatory minimum sentences to compel individuals to provide information?
By exploiting intelligence sources and putting them at risk, the war on drugs has pitted the police against residents in drug-ridden communities. This runs contrary to the ideals of community policing, in which trust and legitimacy are essential to members of the community and law enforcement collaborating to prevent and combat crime.
The past decade has witnessed significant reforms within the criminal justice system, particularly as it relates to drug enforcement. Authorities have sought to integrate a public health approach into the long-standing criminal justice model and adopt a more patient and long-term view on the drug problem. In the end, the reliance on informants and mandatory minimum sentences creates numerous unanticipated negative consequences which will continue to grow if we revert back to them.
