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There is a budding recognition that the nation’s mass incarceration crisis can largely be traced back to the decisions and behaviors of prosecutors. Prosecutors have (largely at the local level) utilized their discretion to charge many more crimes as felonies, driving up the number of individuals serving long sentences. One crime in particular has provided prosecutors with the ability to extract guilty pleas via the threat of hefty punishments: conspiracy. Throughout the country and particularly in the federal jurisdiction, conspiracy laws expand prosecutorial power beyond any sensible stopping point. The exploitation and abuse of these laws has recently come into sharp relief.

Conspiracy laws have long facilitated unchecked prosecutorial discretion, especially in the government’s War on Drugs. In an excellent piece titled “How Conspiracy Laws Let Prosecutors Abuse Their Power,” Lauren Krisai explains:

Using conspiracy statutes, the government doesn’t have to prove someone ever sold, trafficked, or even possessed drugs in order to sentence them to prison as if they had. It’s a recipe for extremely harsh sentencing—sentencing that in some cases . . .  can be substantially longer than the punishments doled out to those who actually committed the crimes.

In other words, even someone with a tenuous connection to a crime like drug-trafficking can be arrested and interrogated and threatened with a conspiracy charge. Prosecutors use this tactic to try to shake loose information about other individuals the government believes to be more responsible for the underlying crimes. But, enormous problems accompany this law enforcement investigative strategy.

This story from Amos Irwin at the Huffington Post provides a powerful example of the strategy’s logical pitfalls:

In 1992, a federal prosecutor in Oregon named Deborah Dealy-Browning was prosecuting a group of men who manufactured and sold methamphetamine. She offered to give them ten years in prison if they pled guilty. Though they faced thirty years in prison if they lost at trial, they refused to accept her plea offer. Determined to avoid a lengthy trial that she might lose, Dealy-Browning pushed Barbra Scrivner, the wife of one of the ringleaders, to testify against her husband. Finally, Dealy-Browning threatened that if Barbra wouldn’t testify, she would charge her as a co-conspirator.

Barbra refused. She had nothing valuable to give and knew that she was not guilty of the charges. She considered it an empty threat. A week after Barbra’s daughter turned two, Dealy-Browning had her arrested and charged her with conspiracy to manufacture and distribute methamphetamine. At trial, Barbra received the mandatory minimum prison sentence—30 years.

Conspiracy laws purportedly designed to help prosecutors gain information about drug kingpins from their associates are now regularly relied upon “to force cooperation from family members who were hardly involved.”

Conspiracy is a particularly problematic charge because it resides at the nasty intersection of broad theories of criminal liability and harsh sentencing regimes that often entail lengthy mandatory minimum sentences. As a 2013 Human Rights Watch report observed: “A defendant involved in a multi-member drug conspiracy can face a sentence based on the amount of drugs handled by all the co-conspirators, even if the defendant had only a minor role and personally distributed only a small amount of drugs or none at all.” On the hook for potentially massive amounts of controlled substances, individuals charged with conspiracy confront the reality that “the power of federal prosecutors . . . is strengthened by mandatory sentencing laws that curtail the judiciary’s historic function of ensuring the punishment fits the crime.” After all, “[c]onspiracy to commit a drug crime carries the same mandatory sentence as the underlying substantive crime.”

Reform is difficult to envision because prosecutors openly rely on conspiracy charges and the mandatory sentences that accompany them to assist in their crime-solving duties. As Irwin notes, “The President of the National Association of Assistant U.S. Attorneys protested in July that if Congress reduces mandatory minimums, ‘prosecutors would lose a tool to extract information.’” Yet, this supposed tool not only fails to move the needle when it comes to tracking down kingpins, but also leads to counterproductive outcomes. Irwin explains that “threatening those at the end of the supply chain rarely leads to kingpins.” Additionally, it “destroys the lives of those who do not cooperate—including many who have done little to nothing wrong—while rewarding the guiltiest offenders.” For example, in Barbra Scrivner’s case, the government actually cut deals with drug dealers to testify against her because she refused to cooperate.

While the federal government is the biggest player in the conspiracy arena, states also enable their prosecutors to exploit conspiracy laws. According to a Vice report, “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.” Law professor and lawyer Neal Katyal affirms the problem’s scope, writing in 2003 that “more than one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy.”

As the nation asks itself how to correct course when it comes to mass incarceration, it must carefully analyze prosecutorial discretion. The outcomes in conspiracy cases give us a chance to look into the microscope and see the gnarly bacteria that is unfettered discretion. Case after case tells us what we need to know. Consider this story from Newsweek:

Stephanie George was a 26-year-old mother of three when she was convicted on drug-conspiracy charges because the man she was dating had kept drugs and money in her house. George had previously pleaded guilty to state charges that she’d sold $160 worth of cocaine to a police informant, so under the federal three-strikes-and-you’re-out law, she was sentenced to life in prison. George was locked up nearly 18 years before Obama commuted her sentence.

It is not surprising that most of the individuals whom Obama granted clemency earlier this month had been charged with conspiracy. But, clemency is not the answer; it is a lone tiny life raft on a sinking Titanic. Front-end change is needed. As Krisai put it: “Conspiracy laws are basically everything wrong with the war on drugs and overzealous prosecution packaged into one, and meaningful criminal justice reform cannot possibly come without reexamining these draconian policies nationwide.”

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