This is an excerpt from a recent sentencing letter sent to the Hon. Marco Hernandez:
Mr. __________’s sentence is more effluent from a failed system of mass incarceration for non-violent drug offenders. It is a waste in every respect. The murky trickle that is his sentence is hardly noticeable until it combines with all the other effluent to form a fetid trillion dollar sewer of injustice running across our federal criminal justice system. The treatment of non-violent drug offenders is tainted with the stench of injustice and racism.
At a certain point, we, we who are paying for this catastrophic waste, we who have demanded this, have a responsibility to question what we are doing. The over-incarceration of yet another person who could be contributing in a positive way to our community does absolutely nothing to staunch the flow of drugs into this country. Imprisoning Mr. ________ did not remove a single meth pipe from anyone’s mouth. It caused no one to pull a needle from their arm or a straw from their nose. It accomplishes nothing.
In 1994, I was in law school at Lewis and Clark and employed as a work/study intern at the Federal Public Defender’s office. I had no prior experience in criminal law. When I learned of the kinds of sentences that were being imposed in federal court on nonviolent drug offenders, I was stunned. At the time, I thought those sentences represented a level of unthinking cruelty well beyond what right minded people would tolerate.
It seemed to me at the time, this was a “justice” system far removed from accountability. The government did not seem particularly concerned with making any progress towards resolving any of the problems the system was intended to address. Why keep doing this, I naively thought, when illegal drugs were only getting cheaper and their use more prevalent?
Bill Clinton was the president. Democrats were in control of Congress. I thought that this obvious injustice would certainly be fixed before I passed the bar in 1996. A year at most and the people would recognize what these drug sentences were doing. My thinking at the time was not prescient. No politician has had the strength or will to do anything to remediate it and it stinks worse than ever. 23 years later and this young man’s case is another embarrassing reminder of human cost associated with this failed effort at prohibition.
Any argument that there is a general deterrent value to his prison sentence is risible. After the greatest orgy of incarceration in the history of human civilization, the price of an ounce of methamphetamine is a fraction of what it was 10 years ago. It is a fraction of what it was even 2 years ago. More people are abusing it. More people are killing themselves with it. In 2014, roughly 3,700 Americans died from drug overdoses involving methamphetamine, more than double the 2010 number, according to the Centers for Disease Control and Prevention. In 2015, the most recent year for which federal data are available, nearly 4,900 meth users died of an overdose, a 30 percent jump in one year. If there is any more obvious metric demonstrating the magnitude of this failure, I am hard pressed to see it. In order to perpetuate this monumental national catastrophe, we, you, Mr. _________, the janitor, even Mr. __________, all of us, have spent more than $1 trillion on drug interdiction and unnecessarily over-imprisoning hundreds of thousands of people like Mr. ______.
It has to eventually become apparent that the prosecutions resulting in sentences like that which will be imposed on Mr. ___________ are a historic policy failure and waste of resources. By investing 1000 to 1 in favor of interdiction and incarceration over drug treatment and responsible use of alternative punishments, the problem of illegal narcotics has metastasized during our lives. The Court’s involvement in the Drug Court has to suggest that punishments like more intensive, personal supervision directed by the Court are the answer not overly harsh prison sentences.
I have always believed that a defense lawyer must never avoid confronting the absurdities of the system and the blindness of much of our public policy,
