Attorney General Holder’s new policy on the application of mandatory minimum sentences in drug cases reserves tough sentences for offenders who work within larger organizations rather than being independent operators. Under this policy, a banker who will launder drug money for any outside drug organization may get more leniency than would a courier or lookout who is a member of single criminal organization. In a balanced appraisal of Holder’s proposal, Jonathan Caulkins points out a potential adverse impact of prioritizing offenders on this criterion:
Organizations of all ethnicities import drugs, but given the geography of production and transshipment, smuggling operations are disproportionately Hispanic. Likewise, members of all racial and ethnic groups participate in retail selling, but – with the exception of outlaw motorcycle groups – the gang members are disproportionately minorities.
The result of assuming that those criminals who work within a larger organization deserve more severe punishment may therefore be that the federal prison population over-represents Hispanics and African-Americans to an even greater extent than it does today.
An alternative approach to sentencing is to worry less about whether drug offenders are part of an organization and instead focus the toughest punishment on those individuals whose removal would most severely disrupt the overall illegal drug trade. This would be a significant departure from the longstanding law enforcement practice of sweeping up huge numbers of low-level drug offenders, most of whom are people of color who work within a gang or other large criminal organization. To quote from an op-ed Jon and I co-authored a few years back:
The US has increased incarceration for drug-law violations literally tenfold since 1980 – without achieving more than temporary increases in prices. There would be little lost by halving the average sentence length for easy-to-replace functionaries within the drug distribution system (lookouts, typical retail sellers, hired hands, etc). It would also spare the public the enormous human and social costs of mass incarceration.