Former prosecutor Mark Osler

Baylor Professor Mark Osler is a busy man indeed.  His most recent book, Jesus on Death Row, will be released in 2009.  He blogs nearly every day, and publishes frequently (as every good Yale JD should).  In his spare time, he wins in the Supreme Court, without even having to argue.

Last Wednesday, the US Supreme Court issued an opinion reversing the Eighth Circuit Court of Appeals on an important Federal sentencing issue, allowing judges to categorically reject the mandatory 100:1 ratio in cocaine sentencing (for example, selling one gram of crack earns the defendant the same prison time as selling 100 grams of powder).  The ruling clarifies an earlier decision, and overrules a lower court's opinion.

Osler was interviewed Saturday in the Waco-Tribune Herald.  His thoughts on low level drug dealers are illuminating for all prosecutors concerned about the disparate impact  of the Drug War on poor or minority offenders.

From the interview:

Q When did you get involved with the issue and start fighting the 100:1 ratio guideline?

A I was a federal prosecutor in Detroit from 1995 until the year 2000 and I prosecuted crack cocaine cases. There was one case that involved a defendant named Shepard where there was a lengthy sentence under guidelines for him (even though) it was a first offense involving a very small amount of crack, and I knew I would get that sentence in the case, as a prosecutor. I went to the sentencing hearing and the defense attorney did something remarkable. The judge looked down at the defense attorney and said, ‘Are you ready to make your usual futile argument?’ and the defense attorney said he was and he proceeded for 20 minutes to talk about the racial impact of the 100:1 ratio, the inefficient law enforcement effects of it and pointed out that this guy, Shepard, was going to get more time than a bank robber who we had just sentenced. And that really stuck with me. Once I came down and started teaching at Baylor (in 2000), I started writing about this in academic journals and eventually took it to the courts.

Q Critics of the 100:1 ratio have said that it unfairly targets racial minorities. Can you explain that argument?

A One thing that, when they came up so quickly with the 100:1 ratio, is they didn't take into consideration the structure of cocaine trafficking. And that is, those who are most culpable, those who bring in large amounts of cocaine to distribute in the United States, distribute it within a city, get the lions’ share of the money from it, there’s two things that are significant about those people. Number one, they’re dealing in powder cocaine, not crack cocaine. It’s not converted into crack cocaine, usually, until right before it gets distributed at the street level. The second thing is that those people who are doing the more important tasks, and making the largest profits, are almost always white or Hispanic. And many of the street-level sellers are black. And that means that you have a racial stratification. And because this 100:1 ratio creates an incentive for law enforcement to go after the least-culpable people, the fact is that those people are more likely to be black. That means that our present people serving extremely long crack sentences are predominantly black, somewhere between 80 and 90 percent. And it’s a very easy case to make. It’s easy to walk up to somebody on the street and ask for 5 grams of crack and there’s a five-year sentence. Whereas, if you’re going to make a case against the person who is actually bringing the powder in, that’s going to be much more difficult and take a lot longer. But taking that person down is really going to make a difference. The business as a whole is structured to make it very easy to replace the people at the bottom, the (street-level) sellers. And there’s a great analysis of this in the book Freakonomics by Steven Levitt where he points out that street-level sellers of crack in Chicago were averaging $7 an hour in that business.  Seven bucks an hour. So, of course they’re going to be easily replaced. It’s a low-skilled, low-wage occupation.  (See also NY Times "Freakonomics" blog)

Q How much did your experience as a federal prosecutor and getting crack-related convictions influence your getting involved in this issue?

A Well, I think it was a big motivation for me, because my goal as a prosecutor was to make things better. I think drugs are a terribly corrosive part of American society and I have no problem with locking up drug dealers, and I have no intent to ever advocate for legalizing drugs, but what we were doing was spending a lot of money and locking a lot of people up and not solving the problem. So, I was unashamed to advocate on the side of people like Mr. Spears, given that things like the 100:1 ratio were pointing our resources and the power of our government in the wrong direction.

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