Looking back now, how do you measure the success of your work enacting
mandatory minimum sentences for drug offenses?|
The work that I was involved in in enacting these mandatory sentences is
probably the greatest tragedy of my professional life. And I suspect that the
chairman of the subcommittee feels that way too. There [have] been ...
literally thousands of instances of injustice where minor co-conspirators in
cases, the lowest level participants, have been given the sentences that
Congress intended for the highest kingpins. Families are wrecked, children are
orphaned, the taxpayers are paying a fortune for excessive punishment. You
know there's nothing conservative about punishing people too much. That's an
excess. And it's just a waste. It is such a waste of human life. It's
How did these laws come about?
These laws came about in an incredible conjunction between politics and
hysteria. It was 1986, Tip O'Neill comes back from the July 4th district
recess and everybody's talking about the death of the Boston Celtics pick, Len
Bias. That's all his constituents are talking to him about. And he has the
insight, "Drugs, it's drugs. I can take this issue into the election." He
calls the Democratic leadership together in the House of Representatives and
says, "I want a drug bill, I want it in four weeks." And it set off kind of a
stampede. Everybody started trying to get out front on the drug issue. ... I
mean every committee ... not just the Judiciary Committee--Foreign Affairs,
Ways and Means, Agriculture, Armed Services. Everybody's got a piece of this
out there, fighting to get their face on television, talking about the drug
problem. And ... these mandatories came in the last couple days before the
Congressional recess, before they were all going to race out of town and tell
the voters about what they're doing to fight the war on drugs. No hearings, no
consideration by the federal judges, no input from the Bureau of Prisons. Even
the DEA didn't testify. The whole thing is kind of cobbled together with
chewing gum and baling wire. Numbers are picked out of air. And we see what
these consequences are of that kind of legislating. ... Ten-year mandatory
minimum, routine sentences are 15, 20, 30 years, without parole.
... Then you have conspiracy, and suddenly ... you have people facing 50
years, people facing either life in virtual terms or as a real sentence. That's
what's happening. Fifteen thousand federal drug cases a year. Bulk of them
mandatory minimum cases. Most of them minor offenders. Only 10% of
all the federal drug cases are high level traffickers. You wonder, who's
asleep at the switch at the Justice Department? ... What you have is
conviction on the basis of testimony. You have drugless drug cases. You don't
need powder, all you need is the witness to say, "I saw a kilo,"...
With no drugs to be found?
There don't have to be drugs. People are amazed, "Well, aren't there drugs?"
There don't have to be drugs. All there have to be are witnesses who say, "I
saw the drugs," or, "He said there were drugs." That's what you need.
Couldn't you guess this would happen?
I don't think any of us fully anticipated what these numbers would generate.
Remember, at the time that we were doing this, the federal prison population
was in the range of 30,000. It's over 100,000 today. None
of us envisioned that the Justice Department would so profoundly misuse this
statute. Congress said, "We're giving the Justice Department these high-level
sentences so that you will go after the highest level traffickers." DEA agents
and assistant U.S. attorneys are misusing this statute, with the complicity of
their managers in the Department of Justice, to engage in what now has really
become a pattern and practice of racial discrimination in almost overwhelmingly
prosecuting people of color for tiny amounts of drugs and sending them away for
Why are they doing it?
They're doing it because it's easy. These cases are the easiest cases to
prosecute. They're cut and dried. The lawyers are public defenders. There's
not any kind of real defense. ... These are little cases. However, it's good
training for young ambitious attorneys who want to acquire jury experience.
And some day they may go after the kingpins, but at this point they're able to
learn their craft. For DEA agents, this is safe. I mean when DEA agents go to
Columbia or Mexico, their life is in danger. Going after some poor schnook
who's the corner crack dealer, that doesn't threaten their lives. The
statistics look good. ...
How did conspiracy law emerge?
If the mandatory minimums were a result of haste and excess by Congress,
conspiracy as applied to these mandatories was completely by oversight and by
accident. It was submitted as part of a simple technical corrections
amendment. No one even thought at all about what the implications were of
applying conspiracy. It was presented as though this was simply a slight
little loophole that had been inadvertently created and just had to be
rectified by inserting the words, "or conspiracy." No one envisioned that by
applying [the statute] to anyone in a conspiracy, no matter how low they were
in the conspiratorial chain, that they would get the maximum that could be
imposed for the kingpin. Nobody figured that out as we were working on it in
1988. It was a total oversight. Now of course you can't change [it], because
that's soft on drugs.
Isn't this all a deadly mix?
The current sentencing situation is a sort of witch's brew of three poisons put
together making an abominable poison: mandatory minimums designed for kingpins
with very long sentences; conspiracy bringing in the lowest level offenders
who become eligible for those; [and "substantial assistance" policies]. The
only way they can avoid those mandatories is to provide substantial assistance
to a prosecutor and if it means telling a wild story to avoid spending almost
life in prison without parole, there are many people who will do that.
... It's the prosecutor who decides whether or not your substantial assistance,
your testimony, is good enough to get the prosecutor's motion to reduce your
sentence ... . So the incentive is, "I'll tell any story I can." I mean these
aren't exactly saints that we're dealing with here, dope dealers. [They are]
people who are often very desperate. They realize, "If I can get five years
instead of 30 years, if I tell a story against that other guy, tell me what
I have to say, I'll say it."
Doesn't the prosecution know that people are lying?
The entire criminal justice system knows that perjury is the coin of the realm.
In New York City police officers call it "testalying." In Los Angeles they
call it "the liar's club." Everybody knows that lying takes place. The
prosecutors don't feel bad about it, this is simply part of the system. They
just justify it by saying, "We have to get the bad guy." ... Police officers
conform their testimony to what they know the courts expect to hear in order to
get the results that they want, not on the basis of what the facts are.
Prosecutors say that judges tell witnesses not to lie, under penalty of
When a judge tells a witness, "Let me remind you, you're under oath and if you
lie under oath, you'll be prosecuted for perjury," this is a disclaimer. The
judge in effect is washing his hands or her hands of any responsibility for the
lie which is forthcoming. This is part of the ritual; it's a ritual statement,
it's not a real statement. It's like when you ask a defendant who's pleading
guilty if they understand what they're doing. They always say, yes. They're
supposed to. They often don't have a clue what they're doing. ...
Informing has been one of the great problems of the criminal justice system.
When a codefendant testifies, almost always the defense can ask for an
instruction to the jury that the testimony of a codefendant is suspect. The
courts have recognized that. But this testimony becomes the cornerstone of the
prosecution. And the jury understands, "Well, this is one dope dealer against
another dope dealer and if the government is trying to convict this dope
dealer, well probably this person is guilty, or else why else would we be
here?" We believe in the presumption of innocence as a society. Once you get
in the courtroom, that presumption is very, very thin. It's not a whole lot of
protection. And when you have a witness who says, "Yes, I am getting a deal,
but I was there and this is what the defendant did," jurors will say, "Even if
I don't believe all that he's saying, I believe enough of it and that enough is
proof beyond a reasonable doubt for me." ...
Do you feel guilty about your involvement in the development of these
The war on drugs is one of the great evils of our times. Drugs are a serious
problem, but it's very hard to tease out where the problems of drugs and the
problems of the war on drugs are not overlapping. Some day there probably will
be war crimes trials in which those responsible for these crimes against the
American people, and other peoples, may be brought to justice. ... We have
federal judges who have resigned, federal judges who have wept on the bench.
Senior federal judges who say, "We refuse as a matter of conscience any longer
to take these kinds of cases." Those are people at least who have the
opportunity to step out. I had the opportunity to step out by leaving my job
in the government and [am] now working to help expose what I think are these
problems. When I meet with the family members of people serving these
sentences, it is very hard. At times I am moved to tears when I sit across from
someone whose loved one is serving a 30-year sentence for something that I
played a role in getting enacted. It's an awful feeling.
Is conspiracy law the worst element in creating these unjust
Many nations do not have conspiracy laws because they see how they can be so
badly abused. Our conspiracy law is such that long after you've dropped out of
the conspiracy, you're still responsible for things that you may have done way
in the past. The criminal organization marches forward. You've gone straight.
But when the chain gets connected all the way to the back, you can still be
held liable and you can be held liable often for things that you had no
responsibility for and you could not foresee. It's a terrible problem, the way
in which conspiracy is being used in these cases. ...
I had a conversation with a federal judge about the implications of the war on
drugs. And the sense of how alien it is to American values, the use of
informants, paying informants. ... We have hundreds of thousands of informants.
Informants can make a living professionally in their role as informants. This
is simply an anathema to the way in which we think a free society ought to
operate. The role of wiretapping, of monitoring telephone conversations, of
taping conversations. Defense lawyers now are afraid that their clients may be
trying to entrap them. The government has said, "We believe we have the power
to go to a man represented by an attorney and unbeknownst to that attorney, try
to get that man to incriminate the attorney." To think that we would undermine
our legal system in this way is reminiscent of the Soviet Union. ...
Are we becoming what we hated?
If we look at the way in which so much of our society functions today, it looks
like the kind of highly regimented Soviet system that we were repulsed by in
the early 1950s. Informants in the work place. Fear of having conversations
with people. Fear of our children informing against us. Not knowing what the
charges might be. Offenses for which bail is no longer available. ...
Does the public understand what's going on?
The ignorance about what's going on exists on a bunch of different levels.
Number one, the offenders themselves are ignorant of what the penalties are
that they could incur. Congress says, "We're going to pass these tough laws to
send a message to the criminals to stop." But there's a complete disconnection
between what Congress hopes and what criminals actually understand. They don't
watch C-SPAN, they don't read "Congressional Record." They simply don't know.
They're astonished when they get punished. Congressmen also don't know what
the laws are. Many of them don't even know that parole was abolished. The
public doesn't know what the laws are. The public still believes that people
are getting slapped on the wrist. These are examples which then allow a member
of Congress to say with a straight face, "We need to get tougher."...
What is the substantial assistance clause?
One of the oldest prosecutorial techniques is working up the ladder. Finding
someone who's not centrally involved, but who has evidence and who you in effect
squeeze and say, "Testify up." This was a very common way in which an organized
crime investigation would work. It's a very old theory in the law and they
believed that that would [work] here. The difference in part is between being
sort of a soldier in a traditional La Cosa Nostra family was you actually knew
who your supervisors were. You knew what they did. They spoke to you. Drug
organizations now are so large and so diverse that someone can be involved as
an unloader, as a seller, as a mule, as a courier. They're insulated, they
don't know who the principals are. ... So very often low level people have
nothing that they can really offer. However, the higher ups are in a position,
very often, to testify down. They say, "I'll testify against six people." The
prosecution of General Manuel Noriega is a prime example where a whole bunch of
high level dope dealers got great sentence bargains for going after General
That was snitching up, but these were already people who were high level
people. Manny Noriega was not dealing with the guy who was unloading the
Does the system encourage those on the lower levels of a drug organization,
who don't have useful information to pass on to prosecutors, to set up others
who may be innocent?
This was one of the things that really did mystify me when our subcommittee did
investigations of the way in which informants were used and misused back in the
1980s. If you are a professional informant, it's a whole lot safer to set up
someone than to actually inform against somebody in the business, because that
person may have you killed. And so we came across cases in which an informant
would pretend to be a government agent, and enlist somebody to [whom] they say,
"We want you to help catch a dope dealer. Now, in order to do that, you have
to tell the dope dealers this story about all the stuff you've done." Now what
happens then is actually the patsy thinks that these people he's talking to are
dope dealers, [but they] are actually the DEA agents. And so the patsy is
telling the DEA agents what he's been told by the informant to say, all about
all this stuff that he did. So the patsy then gets prosecuted as a dope
smuggling pilot, the informant gets his reward, DEA gets the case, who cares
about the patsy? He's now a convicted dope dealer. ...
These witnesses are facing time?
... It's [often] somebody who's saying "Geez, I'm facing 30 years or 50
years in prison, I can get out? What do I have to do? What do I have to
testify? Who do I have to testify against? I have to say he was a dope
dealer, sure. How much do you need to say you saw? How bad do you think this
guy is? He's real bad? Oh, he said he sold fifty kilos, he was the biggest
dealer in town. Is it true? I swear it's true, honest." Who's going to
dispute it? So you've got this guy sitting with the majesty of the federal
court, presented by the United States. "Your Honor, this is the witness on
behalf of the United States. You don't believe him? You don't believe the
United States, your own government? Who can you trust if you can't trust us,
if you can't trust our witnesses?" I don't know how judges can sleep at night,
sending people to prison on what they know is perjured testimony. Well, how do
they do it? "Wasn't my decision, was the jury. ... If the jury believed him,
who am I to say that he wasn't telling the truth?"
But the jurors often don't know what the penalty for a guilty verdict will
The jurors don't know the penalty. We don't let the jurors know the penalty.
... If everybody thinks that dope dealers are getting off with a slap on the
wrist, jurors are in the same box. After all, we know that prosecutors try to
keep informed people off the jury. We don't want informed people on the jury.
They're not so easily manipulated.