We currently have half a million people, more or less, behind bars for drug dealing, an increase of something like twentyfold over the past two decades. Over that period, prices of heroin and cocaine have fallen by more than 80%. So, on the evidence, the idea that we can push drug prices up by putting more dealers in prison — an idea I once thought too obvious to need any argument — seems shaky at best.
But we’re still sending dealers to prison on the basis of, primarily, two factors: what they were selling, and how much. That makes sense only if the goal of drug enforcement is to shink the markets. If drug enforcement can’t shrink the markets, then we ought to be asking what it can do, and asking it to do that.
My nominee: reducing violence. Target the long sentences, and the vigorous enforcement effort that accompanies them, at the dealers doing the shooting. Try to make a reputation for violence a competitive disadvantage rather thana competitive advantage in the illicit drug business.
1. More work for investigators. Weighing the powder is easy. Identifying a dealer as a shooter is feasible. Proving beyond reasonable doubt that a dealers is a shooter is hard.
2. Missing some truly bad guys. Some of the people now going away for long drug sentences are well-known shooters who couldn’t be nailed for the people they shot (sometimes because the witnesses turned up dead). So some sentencing by conduct is already taking place informally. Making it a formal rule would mean that some really bad actors don’t get hammered.
3. Fewer informants. Long sentences handed out by formula encourage “cooperation” (aka “ratting out your friends”). The ten-year mandatory is the contempory substitute for judicial torture: it can make people tell what they remember, and even what they don’t remember. So getting rid of long mandatories for minor players will make all cases harder to make.
Still, reallocating cell space from big dealers to bad dealers makes sense, and the problem is how to make that happen, combining changes in laws with changes in policies. Not an easy problem, but one worth working on.