In the early nineties, a woman from Alabama, responding to a prisoner survey conducted by the National Organization for the Reform of Marijuana Laws (NORML) on behalf of her incarcerated husband mused, “…someday, [marijuana] will be legal. Maybe there will be a lot of non-violent people released from the Government and bac [sic] to their families.” The statement has proven remarkably prescient, as recent events surrounding both legalization and sentencing reform have shown. It is also clear that despite these promising new steps, obstacles and controversy remain.
We’re getting there
On January 12, 2016, Wendell Callahan brutally murdered his ex-girlfriend and her two children in Columbus Ohio. The story in The Columbus Dispatch quickly informed readers that Callahan had “twice benefited” from retroactive reductions in federal sentencing guidelines. This was in reference to a 2014 decision by the U.S. Sentencing Commission, an independent commission in the judiciary, to first reduce federal sentences for non-violent drug offenses, and later under intense public pressure, to make these changes retroactive.
Motivation was two-fold: First, it would reduce the expense and overcrowding in federal prisons. Second, it would potentially give thousands of non-violent offenders a chance to reintegrate into society. Given a year to plan for inmate release, the federal prison system began to release 6,000 federal inmates from prison. The controversy over this move began immediately, some even going so far as to evoke the infamous Willie Horton incident.
Callahan: The Next Horton?
The rhetoric in these stories, and among social media enthusiasts, ranges from the blatantly racist to the legitimately concerned. Any policy intended to release individuals from a court-mandated sentence is bound to be controversial. In addition, any criminal act committed by someone released early is going to raise important questions about the logic of these policies and its implications for public safety.
Historians do not take these issues lightly, in fact, we seek to fully understand these issues through consideration of appropriate historical context for policy decisions like these. The National Organization for the Reform of Marijuana Laws (NORML) has recently deposited its papers at the University of Massachusetts – Amherst. In the early nineties, NORML conducted a prison survey to gather the “stories” of marijuana offenders and to “monitor their treatment by the criminal justice system, particularly in regard to the availability of due process and legal advice.” [1]
The survey responses illuminate a confusing (explicitly dystopian, according to one respondent) and terrifying criminal justice system at work following significant sentencing reforms as part of Reagan’s “War on Drugs.” This story is well known among Points readers and contributors. The political nature of tough on crime rhetoric and public pressure (on all fronts) to rid the nation of the drug scourges of cocaine, crack and marijuana, created incentives to increase police presence and arrests, and to publicize their efforts to “put drugs on the table.”
“Tough on Crime” even helps fictional careers
Beneath the “Carcettian” public relations facade of these very popular efforts was a hidden system of questionable police tactics, poor legal defense, and, most significantly, an elaborate and deeply problematic system of informants. The nature of the surveys precludes accurate statements on the first issue, as many respondents, several explicitly, requested legal assistance from NORML, specifically to deal with questionable searches, habeas corpus and lengthy pre-trial holding times. Further research connecting these responses to prior cases would shed further light on these issues, which no doubt existed.
More reliable and relevant to the larger issue of the ongoing early release controversy are the issues of poor legal representation and the informant system, and the survey responses provide useful information on these two subjects in this specific record collection. Readers should also consider that while the NORML surveys were interested in marijuana convictions at both state and federal level, Wendell Callahan was in federal prison for crack-cocaine. The surveys’ relevance to this topic is based on NORML’s leadership role as public advocates of sentencing reform, and that a much larger portion of marijuana offenders have been (and will be) released through these new changes.
The vast majority of respondents’ overwhelming complaints were about their legal representation, and the vast majority of these had court-appointed attorneys. The problems of the public defender system are well known, even by legal aid societies. In 2003, on the fortieth anniversary of Gideon v. Wainwright, the National Legal Aid & Defender Society identified five continuing problems in legal aid. All five are revealed in these survey responses.
Ahh the good ol’ days. Bart Matthews (Reed Hadley) in the 50s show The Public Defender
The surveys included a space to respond to “What sorts of experiences did you have with your counsel.” The more curt responses were just as revealing as the detailed ones. A few respondents responded rather matter-of-factly with vague but telling phrases like “none,” “none at all,” and even one that simply read “HA-HA-HA.” The more detailed responses imply a shared experience. In general public defenders seemed unfamiliar with the appropriate legal and penal statutes, even occasionally seeming “overwhelmed.”
The strongest accusation was that public defenders were actively working with the state for convictions. Many stories about pressure to plead out or to turn informant came directly from public defenders. While it is unlikely that this was the case, the conduct of several defenders did little to counter this widely accepted claim. One respondent described how his public defender encouraged him to pay a fee ($5,000) “for a better job.” Based on his account, this “better job” was a total of fifty minutes in consultation with attorney, and during the trial, “He read the newspaper while my codefendant [sic] was testifying and he allowed my two parole officers to lie on the stand with no objections being made.”
To be sure, some were satisfied with their representation and recognized the larger forces at play. As could be expected, this was more true for people with private attorneys, but some with public defenders said so as well. There was a recognition that the legal-aid system was overworked, as several respondents praised their public defenders for meaning well, or trying hard. Here, too, was an implicit critique of the larger system: one man who recognized the “overwhelming evidence” in his case simply hired his own attorney for “damage control to keep them from over-charging me more than they did.”
A more frightening aspect of this episode of the war on drugs was the elaborate system of informants used by police to identify and arrest dealers, users and suppliers. Points contributors have focused on the inherent corruption of this system, here, here and here. While these articles have highlighted the “worst case scenarios” in the use of confidential informants, these surveys show just how pervasive and routine the use of informants was. In some cases, multiple levels of informing were present, including one case that started as the result of an informant turning on an informant, who himself was an informant. The respondent, a third-level informee, was himself offered a reduced charge to inform on yet another person.
Confused yet? Informants played all sorts of roles. Some were friends and family, others were anonymous (Crimestoppers was mentioned twice), but most were fellow travelers. Dealers informed on suppliers and their customers, rival operations informed on each other, and, of course, suspects facing time for all sorts of crimes (including violent crimes like assault and murder) could reduce or eliminate their sentences by informing on anyone and everyone they knew.
These “trapped” informants put intense pressure on targets, pressure described several times as “harassment” by survey respondents. Informants were often given deadlines to produce, and were desperate to avoid jail. Informants used various tactics that not only made cases, but usually encouraged targets to engage in deals they were not comfortable with, usually involving more weight in the deal (sentencing guidelines were based on weight), or financial incentives (including down payments for drug deals!).
A small time dealer from Georgia who made a modest living selling small amounts to friends described being convinced to sell a quarter pound to a dealer-turned-informant to help out with a financial crisis involving a newborn baby. While being interrogated, he remembers being pressured into informing on himself and bought some time by agreeing to inform on an unknown dealer mentioned by police but unknown to him. “This made them happy and they agreed to let me go providing [sic] that I would help them ‘bust’ someone else…within 2 weeks.”
One of the witnesses against an Alabama prisoner was described as “a convicted murderer” whose sentence for killing his girlfriend was reduced to manslaughter in exchange for cooperation on his smuggling case. Another pointed out that he received three times the sentence of his co-conspirator due to his failure to inform. An informant involved in a Georgia case had an even longer criminal record including burglary, theft, illegal firearms possession, and hint of involvement in drug distribution. The informant never served time, in exchange for informing on at least four other men.
When thinking about the potential pitfalls of early release programs in 2016, we must understand the context in which these efforts take place. Unjust sentencing guidelines was more than simply increased sentences. Its one-off consequences were to provide perverse incentives to pad arrest statistics and led to the exponential expansion of the highly contradictory informant system. The higher arrests that resulted overburdened an already taxed legal aid system that routinely limited defendants’ constitutional rights to adequate representation.
If all this sounds Orwellian, it also did to two survey respondents. “To me,” stated a prisoner serving a 30-year sentence for conspiracy to import and traffic in marijuana, “smuggling or trafficing [sic] in pot is not illegal, smuggling and not ratting is illegal. All my snitches only got a year. Even a murderer can go free if he tells all.”
Another respondent passed up the rhetorical niceties and simply went full Orwell in his closing.
[1] National Organization for the Reform of Marijuana Laws (U.S.) Records, 1937-2012. University of Massachusetts Amherst, Special Collections & University Archives. Series 3. Box 25 (folder 46-51), Box 26 (folder 1-2). The folders are labeled ca. 1992, presumably when the surveys went out. Several responses describe events more recently, as late as 1994.