Mimesis Law
23 May 2019

The Wrong Way to Argue Against Mandatory Minimums

May 17, 2016 (Mimesis Law) – Journalists are trained that good stories capture emotion. They use emotion to get our attention and to give you a story that you want to read or hear. The Greeks recognized appeals to emotions as sophistry; today we call appeals to emotion the news media. Perhaps once upon a time, hard-nosed journalists wanted facts, but now they mostly want us to feel sorry for the people in their stories.

Over at the HuffPost is a story about a couple of girls. One of the girls was getting help kicking a drug habit and was straight for two months—earning her a pass home from an inpatient facility. Although the physical need for the heroin had long since passed, the now-clean girl was tempted to take heroin one last time. So, she texted her drug-dealer friend. Rather than be a true friend, she happily agreed to provide her friend with enough heroin to kill her. And that’s nearly what happened.

That girl struggling to get clean overdosed alone, in her bedroom. A family member stumbled upon the nearly dead girl and called 911. The medical personnel were able to save that girl’s life, such as it is now. That girl is permanently brain damaged and paralyzed. She will never be able to do anything that high school juniors do. And it all happened because her so-called friend gave an addict in recovery a nearly lethal dose of heroin.

Of course, being the HuffPost, that’s not how the author chose to tell the story. Rather, it’s written so neither one is really to blame for the accidental overdose.

In the author’s telling of the story, the victim was not the paralyzed and brain-damaged girl; no, it was the drug dealer who supplied the heroin. And the perpetrator of the wrongdoing is not the drug dealer, rather the prosecutor. According to that author, threatening to charge the drug dealer with her crime was somehow the problem. Any sense of outrage that decent people would have over the harm the drug dealer caused is ignored.

Eventually, the author tells us why we should care about the drug dealer (Katie):

Katie’s prosecutor did not have to charge her with the 20-year-minimum offense—she could have charged her with possession of a quarter-gram of heroin, which carries no mandatory minimum, or dismissed her case entirely. In fact, she never intended to charge Katie with the 20-year offense. After threatening Katie with it, she added that if Katie turned in her supplier, she would reduce Katie’s charges and let her off without any prison time at all. Katie immediately turned in her supplier, who turned in his supplier, who led the police to a man named German Tovar-Ramos, who was caught with a kilogram of heroin and sentenced to 17 years in prison.

So, the prosecutor offered the drug dealer a plea discount. And it led to the capture of other drug dealers. Horror of horrors! It’s hard to fully appreciate why we should feel badly that a drug dealer is locked up and another drug dealer, who nearly killed someone by drug dealing, decided to cooperate rather than spend 20 years in prison. If you read on, the author tells us what he thinks is important here:

There are two problems with threatening long sentences to extract cooperation from low-level drug offenders. First, this strategy is ineffective in impacting the drug trade. Second, it inflicts immense collateral damage on innocent people and low-level offenders, while letting the guiltiest offenders off more easily—the opposite of what Congress intended.

Regarding the first point, further explanation is given why this is supposedly ineffective:

This strategy is also too time-consuming to make a dent in the drug trade. State and local prosecutors—ninety percent of the total—do not have time to follow the supply chain; they are scrambling just to convict the flood of small-time drug offenders the police bring them. The only prosecutors who can dedicate hundreds of hours to flipping informants are the elite federal prosecutors, whose mission is to “uncover and dismantle criminal organizations of national and international scope.” We pay for intensive federal investigations so our nation’s top prosecutors can pursue terrorists, mafia dons, gang leaders and criminal CEOs. They should not be using these scarce resources to try to flip Katie and take down one drug cell among roughly 50,000 nationwide.

This is basically just the author guessing—wrongly. Though in a happy coincidence for the author, the guess just happens to support that author’s thesis. But he’s wrong. Even local drug task forces can make international connections. And often these local task forces work with hand-in-hand or as part of federal task forces. So, if a local task force develops an international lead, the federal agents can assist with or assume that part of the investigation.

Plus, the last sentence is bizarre. It suggests either that feds should only prosecute organized crime figures, e.g. “terrorists, mafia dons, gang leaders and criminal CEOs.” The thinking seems to be that if a crook single-handedly steals, let’s say tens of billions, but is not part of organized crime, then that person is less worthy of prosecution. In other words, we are admonished not to prosecute Bernie Madoff, but rather crooks like Lefty Ruggerio for stealing parking meters. Further, the last sentence suggests that because the problem is too big, then we should not start at all. And if we must undertake this Sisyphean task, then let the heavens fall before prosecuting street crime.

But really all of this was a build up to the main point of the article:

Second, this interrogation strategy is inhumane. It destroys the lives of those who do not cooperate—including many who have done little to nothing wrong—while rewarding the guiltiest offenders.

Rather than a being seen as a boon for the wrongdoers, who while remaining legally culpable might be less morally culpable than other similarly situated wrongdoers, plea discounts are called inhumane. We can definitely award an A+ for hyperbole here. Again, a supposed horror story of a criminal getting convicted for wrongdoing is supposed to be all the proof we need that mandatory minimums and plea deals are a problem. It’s all wonderfully self-reinforcing.

And then we are told of the putative solution:

I am not arguing that we should prevent federal prosecutors from rewarding defendants who cooperate.

Wait, what? I thought that was the inhumane evil you were nobly railing against.

Prosecutors need some capacity to reward scared low-level defendants for testifying against their bosses.

Oh, so it’s the “scared low-level criminal rule,” then. I guess I was in the bathroom when that was discussed in criminal law. Because criminal law is only concerned with fearless mastermind criminals. Never mind figuring out the legal definition of what is meant by “low-level criminal.”

But when Dealy-Browning can threaten to send Barbra to prison for 30 years and take away her daughter if she refuses to cooperate, we have crossed the line between persuasion and coercion.

The problem is that sometimes people make bad decisions which lead to further bad decisions, which lead to harsh outcomes. There are some decisions so poor that you can lose your child and your freedom. For example, this would be such a case. Besides, who gets to decide where the line is between persuasion and coercion? Certainly not the HuffPost.

Surely we should not ruin lives and sacrifice our principles in pursuit of meaningless, low-level drug cases.

What and whose principles? That looks suspiciously like a straw man argument. It is doubtful that there really is anyone arguing in favor of that proposition. After all, we’d certainly hope no sane person would ever advocate pursuing meaningless prosecutions.

The first steps are clear. Congress must get rid of mandatory minimum drug laws. Congressman Grassley and his colleagues need to recognize that federal prosecutors use mandatory minimums primarily to coerce low-level offenders, that this is not what Congress “intended,” and that it is ineffective and inhumane.

Ineffective, he says. But yet he points to all of these stories of criminals getting punished. As it turns out, mandatory minimums were certainly was effective in sending convicted criminals to prison. Of course, calling his solution clear ought to have been a red flag, if you had lacked a reason for concern until this moment.

I suspect the author just expected a head nod at this point from his audience, along with perhaps a righteous fist pump. While “intended” is in quotes, in a subtle effort to give intellectual distance to the assertion made there, the fact is the author is proclaiming this is not what Congress intended. Yet, if you ask Bill Otis or Bill Bennett, they would likely say that this is exactly what Congress intended. Oh, yeah, and the argument is not a very well disguised appeal to authority.

Reasonable people can disagree about the lengths of mandatory minimums and the sorts of crimes to which they should be attached. Perhaps they are too long, too widely used, and too indiscriminate. But this argument is entirely the wrong way to go about making thoughtful changes to the laws. This article is basically feelz backfilled with post hoc rationalizations. And while it may get clicks and shares on social media, it does not offer a thoughtful solution or even a particularly well-defined problem to solve.

On the other hand, you can find much better pieces here at Fault Lines and Simple Justice. So why go anywhere else?

4 Comments on this post.

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  • William
    17 May 2016 at 10:50 am - Reply

    Really? You’re comparing microwaving a baby to sharing drugs with a friend? I am frequently astonished by your lack of empathy. Will the world never run out of sociopaths to fill jobs like yours?

  • William
    17 May 2016 at 11:04 am - Reply

    “After all, we’d certainly hope no sane person would ever advocate pursuing meaningless prosecutions.”

    That’s exactly what you advocate when you agree that prosecuting Katie is a good idea. Do you not think that losing a friend is punishment enough? Do you think she’s likely to do it again?

    As a general rule, most “war-on-drugs” prosecutions are meaningless if you believe the goal to be stopping the supply of drugs or preventing their use.

    I predict a Spitzer-sized scandal in your future, Mr. King. Holier-than-thou looks even uglier once your own dirt starts to show.

  • Richard G. Kopf
    17 May 2016 at 12:09 pm - Reply

    Andrew,

    Great work.

    Either drug dealing is a crime or it isn’t. If it is a crime, why shouldn’t prosecutors be tough? Whiny William (the vapid and nasty commentator) is, to put it charitably, a moron with a mean streak. Forget him.

    Katie is not a victim. Katie is a dangerous criminal who damn near killed somebody. Sorta like the asshole I sentenced to life in prison after one of his crack whores hung herself in the cell adjacent to my courtroom following her sentencing.

    To be clear, mandatory minimums are bad. They distort the federal Sentencing Guidelines. They also transfer power from the judge to the prosecutor. But emotions don’t help one understand why that is so or why mandatory minimums detract from the goals of sentencing.

    How do you tell a “progressive” on criminal justice issues? They always substitute pathos for logos and ethos just as the Greeks warned. The Huff Post’s slogan ought to be: “Sophistry is not dead, long may it live! Besides, it requires no effort–just feelz.”

    Again, a wonderfully reasoned and literate post on many levels. Thanks a lot.

    All the best.

    Rich Kopf

  • David Meyer Lindenberg
    17 May 2016 at 1:18 pm - Reply

    I second what Judge Kopf said. Whether Katie’s conduct should be criminal is neither here nor there. The HuffPo article amounts to barely literate whining on behalf of a group the author feelz for and you did a great job deconstructing it.