On Folks Who Sell Drugs

Over at Volokh this week, criminologist James Q. Wilson is guest blogging this week about imprisonment issues. In the comments to this post, and then more in this post and the comments, some folks grapple with the idea that a large chunk of our prison population is made up of non-violent drug offenders. Some say this is a "myth" and argue that people just don't get sent to prison for simple possession of drugs these days. Others maintain that it's a bit more complex than that, with which I agree.

In my, admittedly limited, experience people who end up in prison for drug crimes basically fall into four categories.

First, there are the simple possession folks. I agree that, in our district at least, very few people are prosecuted for simple possession, at least initially. Where simple possession kicks in, however, is when people come out of prison on supervised release. The supervised release statute provides for mandatory revocation (and shipping them back to prison) for simple possession. Given that some Circuits, including the Fourth, conclude that use=possession, simply testing positive for, say, cocaine can send someone back to prison. So, no, simple possession as an underlying offense may not get you sent away, but it will get you there on the tail end.

An exception to that is crack cocaine - simple possession of more than five grams of crack gets you the same mandatory minimum five years that distribution of more than five grams does.

Second, there are folks convicted of possession with intent to distribute. Here's where things get fuzzy with the "possession won't get you sent to prison." Generally, intent to distribute is inferred solely from the amount of drugs you have on you when the police arrest you. If you're a heavy user, who might buy in bulk (just like at Wal-Mart, it costs less that way), you may get tagged as a dealer. It's a tough inference to rebut, given the lack of solid testimony that can be presented on the issue (either from the defendant, obviously trying to exculpate himself, or from other users). So, while the law draws a distinction between "simple possession" and "possession with intent," the intent often comes down more to prosecutorial discretion than any bright line conduct of the defendant.

Third, there are people who are dealers, who deal in order to support their own habits. In other words, they're junkies trying to score the best way they know how - by selling to other junkies. That group, I think, encompasses most of the drug defendants we represent. They generally aren't violent, at least in terms of their drug sales (domestic violence often goes hand in hand with addiction, tho'). They aren't living a glamorous lifestyle. They're simply surviving as best they can.

Fourth, and finally, are what you might call the professional dealers - think Antonio Barksdale and crew from the first season of The Wire. They aren't users, they're organized criminals in the classic sense. They may use violence to protect their product, or not. This groups is what most people think of when they hear "drug dealer" and is the stereotype of crack offenders that the DoJ presented during the Guideline reduction debates. Of course, that stereotype was thoroughly debunked by the Sentencing Commission. This group is probably the smallest of the bunch, aside from the simple possessors.

So, by my experience, the theory that the prisons are full of non-violent drug offenders is true. Are there exceptions in all four groups? Absolutely. But they are just that - exceptions. The harm to society that the mine run of defendants do is significantly less than the harm done by locking them away in cages for absurdly long amounts of time.