How Drug Trafficking Conspiracy Laws Put Regular People in Prison for Life
If you rub elbows with big-time drug dealers, you can get sentenced to decades behind bars thanks to laws passed at the height of the drug panic in the 1980s.
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In 2013, a cow wandered off a North Dakota man's farm. While preparing to search for the wayward animal, the man and his female companion decided to have some fun, so they hopped in a pickup truck with a kit that contained a small amount of meth and a pipe.
At the same time, local police were executing a search warrant on the man's home—he apparently was more than just a casual meth user, something the woman riding in his truck would soon find out. While she did cop to the small amount of meth on her, she had no idea that a coffee can at her feet contained a pound and a half of ice.
For her proximity to the container, the woman was charged as being part of a criminal conspiracy to produce and distribute meth. She faced life in state prison.
"The conspiracy charges, they will use as a threat to get people to comply and turn over people up the food chain," said Blair Nelson, the Minnesota attorney who took the woman's case and ultimately helped her dodge the conspiracy charge. (Nelson did not wish to name his client in order to protect her identity.) "The likelihood of being charged with a conspiracy is directly proportionate to how much information the government thinks you're able to give them."
Nelson was eventually able to convince the court his client had no knowledge of the meth in the coffee can. Having stared down life behind bars essentially for getting high and looking for a cow, she was grateful to settle for time served and three years probation.
"She was just a low-level user who happened to be in the vicinity," Nelson told VICE.
When many Americans think of drug conspiracies, images of Mexican Sinaloa cartel members buying off DEA agents might come to mind. But the reality is very different. At the federal level, mandatory minimums were applied to trafficking conspiracies at the height of the drug panic in 1988, and courts were soon crowded with suspects accused of playing some role—no matter how trivial, incidental or arbitrary—in delivering drugs to the public. Many states have their own conspiracy laws, and even today, friends and acquaintances of actual traffickers can get sentenced to life in prison because of some vague connection to the legit players running the drug trade.
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Eric Sterling, who served as legal counsel for the US House Committee on the Judiciary that drafted the federal conspiracy law, helpfully described the system at the time.
"If a defendant is simply the doorman at a crack house, he is liable for all the crack ever sold from that crack house—indeed, he is liable for all of the crack ever sold by the organization that runs the crack house," Sterling wrote for Frontline.
Or, in the case of the North Dakota woman—who was charged at the state level—she is responsible for the can of meth she didn't know was sitting at her feet.
"Basing penalties on the weight of drugs that somebody's caught with—I don't think anybody in the field thinks that makes any sense," said Harold Pollack, a University of Chicago professor who co-directs the school's crime lab. "The weight that people carry doesn't really have anything to do with where people rank in the (drug organization's) hierarchy."
In fact, those carrying large quantities of drugs are often far down the totem pole of a specific drug organization—mules who inevitably take the fall should they get caught trucking a semi trailer of weed into Chicago, for instance.
State and federal prosecutors handling conspiracy cases have a much lower threshold for proving guilt than they do for violent crimes, according to Pollack. Prosecutors have access to physical product that can be weighed and entered into a table; if you have five kilos or more of ready-to-snort coke, for instance, your first offense requires a sentence of between 20 years and life. That's according to the DEA, which also says that a second offense of having more than 500 grams of meth means an automatic life sentence and a fine of $20 million.
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Prosecutors charge users and dealers and makers and cooks with what's called a "minimum threshold." This gets them into federal court, where judges are required to hand down lengthy mandatory minimum sentences. When I worked as a reporter for the newspaper in my hometown of Peoria, Illinois, I watched dozens of meth heads and low-level cooks enter the gleaming federal courthouse in jumpsuits and shackles and leave with fresh life sentences to serve.
There were so many of them it wasn't even newsy anymore. With family and friends crying in disbelief that drugs had led to their loved ones going away forever, their lives were reduced to two-inch briefs in the paper.
"Violence-oriented drug enforcement is what a lot of communities are asking for, not arresting every person who's involved in the drug economy," added Pollack, the University of Chicago professor. "The thing that you really want to base sentencing on is, did this person do violence? Did this person negatively affect the community?"
Pollack and others have argued for this approach. Especially in Chicago, where violence should be the priority for law enforcement—the city is approaching 400 murders and more than 2,000 people shot this year—Pollack said the efforts of police and prosecutors should be more focused on reducing the number of gunshot victims. Not increasing the prison population by picking up people for drugs.
"There's no real evidence that we're going to change the amount drugs that are consumed in America by going after these Mexican cartels," Pollack said, citing a popular target of federal and local law enforcement. (Chicago police again named Sinaloa cartel leader Joaquin "El Chapo" Guzman the city's "public enemy number one" when he escaped from prison in July.) "So instead of focusing on the Mexican cartel who has the largest market share, you go after the one that's killing the most members of Mexican law enforcement, or that's causing the most violence here."
Drug-related violence remains a subject of debate in Chicago, where it has been studied by more than a few of Pollack's colleagues at the University of Chicago, and among journalists who track violence.
In a 2013 expose on the Sinaloa cartel's operation in the city, Chicago Magazine pressed officials for evidence of a connection between the drug trade and street violence. Andrew Bryant of the Cook County state's attorney's office admitted to the magazine that the "connections between a cartel and street gangs" are "very loose."
Even during the crack boom—an era that former Chicago Police Commander Lorenzo Davis told me was responsible for a massive number of drug-related murders—researchers "found that just 3 percent of the gang-motivated homicides were drug related," Chicago Magazine reported.
If picking up drug dealers large and small isn't having a significant effect on stemming street violence, what's the point?
Davis, who is now a whistleblower accusing his former department of covering up questionable police shootings, recalls many shootings and homicides being fueled by the drug trade. But according to the study cited by Chicago Magazine, his memory may be a bit off.
"The connection between street gangs, drugs, and homicides was weak," the authors wrote of their findings.
So if picking up drug dealers large and small isn't having a significant effect on stemming street violence, what's the point? According to Nelson, the Minnesota attorney who kept his client out of prison for the rest of her life over a meth conspiracy charge, the answer is simple: cash.
"Like any other racket, you follow the money," Nelson told me. "The money comes from law enforcement getting grants for doing particular work, and they are paid based upon their success in taking down a certain area of offenses." (The Drug Policy Institute notes that drug task force funding is frequently tied to arrests made and property seized.)
Not every police department has the ability to take down the weight man bringing truckloads of drugs into their community, let alone top dogs like El Chapo.
"They pad their statistics by filling their net with little fish," Nelson said of police.
And those little fish are filling the pond. In the first six years after being enacted in 1988, the percentage of federal inmates doing time for drug offenses increased by 300 percent, according to Eric Sterling's Frontline report. As of August, nearly half of the more than 190,000 inmates incarcerated in federal prison were there for drug offenses—which of course doesn't take into account their counterparts in state, county, and city prisons and jails.
Even more frustratingly for Nelson—who represents many of the poorest residents in his coverage area of northern Minnesota, including many Native Americans—to be convicted of a drug conspiracy, you don't even have to necessarily move any drugs.
"All you need is the agreement to do something in furtherance of a criminal objective, you don't even need to accomplish it," Nelson said. "So the War on Drugs is funneling public money to police units that rely on it for their budgets.
"It's like putting a bounty on the American people," he added.
And it's a bounty we're all still paying for.
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