More evidence that harsh mandatory minimums for drug offenses don't work

The biggest argument against reforming mandatory minimum sentences may be completely wrong.

The argument goes like this: Prosecutors use the threat of really harsh mandatory minimums, which impose strict penalties for drug possession with intention to distribute, to scare drug dealers into cooperating with police, who can then dismantle drug rings with the dealer's inside information. So if mandatory minimums are relaxed, reformed, or repealed, prosecutors won't be able to draw out this cooperation.

But a new report, from the US Sentencing Commission (USSC), suggests that may not be true: After Congress and President Barack Obama reduced mandatory minimum penalties for crack cocaine possession in 2010, crack offenders continued cooperating with law enforcement. And that could have big implications as Congress considers serious drug policy reform.

What the USSC report found

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The USSC report looked at the impact of the Fair Sentencing Act of 2010 (FSA), which raised the threshold for a five-year mandatory minimum for possession of crack from 5 grams to 28. In comparison, someone would need to posses 500 grams of powder cocaine — which is pharmacologically similar but more likely to be used by white instead of black Americans — to qualify for a five-year mandatory minimum.

The report made five major findings:

1. Crack cocaine offenders weren't less likely to cooperate with law enforcement despite changes in the FSA.
2. Fewer crack offenders are prosecuted each year since the FSA passed.
3. The crack offenders prosecuted since the FSA passed aren't, on average, more serious offenders than those prosecuted before the FSA.
4. Crack cocaine sentences are closer on average to powder cocaine sentences following the FSA's enactment.
5. The rate of people reportedly using crack cocaine continued its long-term decline through the FSA's passage.

The findings debunk many of the warnings law enforcement officials made prior to the passage of the FSA. Not only did cooperation with police not drop, but law enforcement officials were able to go after the same type of offender, and crack cocaine use continued to drop as it had for years before the FSA.

There's one catch: The report's findings only apply to a law that weakened — not repealed — mandatory minimums. It's possible that law enforcement coerced cooperation from crack offenders through the threat of mandatory minimum laws that remained in place. That would suggest that mandatory minimums don't have to be quite as harsh as they were before 2010, but they still have to exist in some form to get cooperation from crack offenders. So if Congress took the extra step of repealing mandatory minimums, the results could vary.

But it's also possible that the mere threat of any prison time for drugs — mandatory minimums or not — is enough to get cooperation from drug offenders. If that's the case, Congress could repeal mandatory minimums and devise a more lenient penalty for drug possession. That would allow judges to more freely decide how someone gets sentenced, instead of forcing them to hand down exorbitant mandatory minimums they might not agree with. And prosecutors would still be able to get drug offenders to rat out the rest of their organizations through the threat of some punishment — just not the kind of punishment that helps perpetuate mass incarceration.

The report comes at a big moment in drug policy debates

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The USSC report comes at a crucial point in the drug policy debate — as Congress discusses whether to ease mandatory minimums through a sweeping criminal justice reform bill.

Currently, the House of Representatives is considering the SAFE Justice Act, which would narrow who mandatory minimums apply to, allow judges to sentence people to probation instead of prison in more cases, and let prisoners reduce their sentences by participating in rehabilitative programs. Some of the benefits would apply to nonviolent drug offenders. But any inmate can get time off a prison sentence by proving rehabilitation, and the bill provides some monitoring and counseling services to violent offenders once they get out of prison by renewing the Second Chance Act.

But the House proposal faces tough odds in the Senate, where Republican leadership is much more skeptical of reform. Sen. Chuck Grassley (R-IA), chair of the Judiciary Committee, cited the Federal Law Enforcement Officers Association as he claimed, "Currently, the system in place allows federal law enforcement agents to infiltrate and dismantle large-scale drug trafficking organizations and to take violent armed career criminals off of the street. In turn, this allows progression up the scale of criminal organizations from low-level subject to higher-ranking members through the effect of the mandatory minimum sentencing act."

It's unlikely USSC's report will sway Grassley, who has been a staunch tough-on-crime advocate for decades. But it at least gives more ammo to those seeking reform — and that could, if nothing else, sway others in the House and Senate.

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