The recent deaths of unarmed African Americans at the hands of police in cities such as Ferguson and Baltimore have renewed a national discussion on the racial inequalities that permeate law enforcement and the judicial system. Yet, while most have focused attention on excessive police force in black communities, Visiting Scholar Mona Lynch (UC Irvine) presents compelling new evidence that federal prosecutors have been a crucial part of the driving force behind mass incarceration—in particular, following the federal crackdown on drugs in the 1980s. As she wrote recently in an op-ed for the New York Times, "For decades, our federal court system has been quietly perpetrating some of the deepest injustices in the name of the war on drugs."
During her time in residence at the Foundation, Lynch is writing a book on how ongoing changes in federal drug sentencing laws have manifested at the local court level. Among other topics, she is examining the ways in which entrenched norms, practices, and incentives within federal courts contribute to racial disparities in drug sentencing. In a new interview, Lynch discussed her ongoing research on how drug cases are adjudicated in trial-level federal courts.
Q. Much of the existing research on the War on Drugs has been concentrated at the macro level. However, you dig deep into the trial-level federal courts to uncover the micro-level mechanisms of drug sentencing procedures. Can you explain how the federal sentencing guidelines implemented during the War on Drugs have changed the way drug cases were handled at the local level? How have these changes contributed to the crisis of mass incarceration in the U.S.
Mona: Great question. I embarked on this project because one of the fascinating aspects of the mass incarceration phenomenon is that it required incredible changes in local courts' day-to-day practices to come to fruition. Legislatures make and change criminal laws as a matter of course, but that simply creates the potential for change in outcomes. What we've seen in the wake of the state and federal "tough on crime" law changes that happened in the late 1970s and 1980s, is that there has been vast variation in how local jurisdictions actually deployed the new punitive laws. Even under the same penal codes, the kinds of sentences meted out court-by-court are quite disparate.
In the case of the federal system, while the 1980s sentencing reforms explicitly aimed to reduce demographic and geographic disparities, district courts also have very disparate practices in the kinds of cases prosecuted, and in the sentences meted out, even after taking into account factors that would explain those differences.
More fundamentally, the federal system became much more punitive than it had previously been, with more cases coming to federal court than ever before. The law changes of the 1980s redistributed significant legal power to prosecutors, who became, in the words of legal scholar Doug Berman, "first-look sentencers" by virtue of the charges they file against defendants. This was especially the case for drug crimes because of mandatory minimums. When a prosecutor charges a defendant with a crime that is subject to a mandatory minimum, upon conviction, the sentence is guaranteed to be at least as long as that mandatory sentence. As a result, what we saw in the federal system was a steep increase in the number of drug cases, a sharp increase in convictions, and a huge jump in length of prison sentences for drug defendants. Just to give you a sense of this growth, in 1980, there were fewer than 5,000 drug trafficking convictions in federal courts; by 2000 that number was close to 25,000.
These phenomena inspired me to do a more in-depth qualitative project in a small subset of distinct districts in order to more fully understand how the law gets put into action as a localized practice. That research is the subject of my forthcoming book with the Russell Sage Foundation.
Q. What does the plea process in particular reveal about the effects of federal drug sentencing on mass incarceration?
Again, because of the features of the laws passed in 1980s, prosecutors have much more power and leverage than they had under the previous system. Part of that power is how harsh the penalties are for federal drug crimes, which puts enormous pressure on defendants to plead guilty and to charges that come with long prison sentences. The result has been that the trial rate has plummeted in drug cases. Close to 98% of all federal drug convictions are the result of guilty pleas. The "trial penalty" is too steep to risk it in the vast majority of cases. In the most extreme case, as I have recently written about, defendants have been sentenced to life in prison without parole after going to trial. Put simply, the plea offers may require very long sentences, but the alternative can be exponentially worse.
The consequence is that defendants sentenced for drug convictions have substantially driven the prison explosion in the federal system. Since 1989, 50% or more of the year-end federal prison population has been comprised of people convicted of drug offenses.
Q. What kind of policies might begin to mitigate the racial and socioeconomic inequalities in drug sentencing and incarceration? How might local courts be reformed?
As you suggest in your question, the federal "drug war" has increased inequalities in our criminal justice system, in part through the prosecution of a disproportionate number of minority defendants. There is also research suggesting that racial inequities in sentence lengths are especially prevalent in cases that are subject to mandatory minimums, so addressing those laws is critical. One piece of that was the so-called 100-1 powder crack disparity, where it took, for instance, 500 grams of powder cocaine, yet only 5 grams of crack cocaine to trigger a 5 year mandatory minimum. Nine out of ten crack cocaine convictions have been of non-White defendants. Overall, about 75% of convicted drug defendants in the federal system have been racial and ethnic minorities.
Some changes are beginning to happen. Congress reduced the powder-crack disparity to 18-1 when it passed the Fair Sentencing Act in 2010. The Attorney General's office has also directed its line prosecutors to use mandatory minimums more judiciously as well. But more is needed. One of the core problems is just how punitive the laws are, so the universe of possibility for sentence length is very high, especially for those with prior drug convictions. That in essence makes the whole adjudication process imbalanced, especially in the case of mandatory sentences and enhancements where judges have no discretion to sentence below the prescribed mandatories.
There are some really dramatic changes in some locales, but it takes joint buy-in and collaboration on the part of the court actors to commit to addressing over-punitiveness. For instance, here in the Eastern District of New York, there is an innovative pre-trial diversion program run by two judges for drug defendants. It allows those who have underlying addiction problems to participate in a number of activities and programs aimed at addressing the addiction and other life challenges, and those who successfully graduate are usually exempt from a prison sentence. This program is successful because all parties-the judges who started it and the probation department, the prosecutors, and the defense bar-agree to manage a subset of defendants through this alternative route. While not specifically addressing racial inequities, these kinds of opportunities do help remedy socioeconomic challenges that many defendants face. They provide educational and vocational assistance, and they directly address some of the multiple life stressors that can lead to both addiction and criminal offending.