Ross Ulbricht, the creator of the original Silk Road dark-web marketplace, was given a federal life sentence in 2015. But the top defendant in the US prosecution for Silk Road 2.0, Brian Farrell, received “only” eight years in prison from a federal court, despite that iteration doing double the business (2.0’s creator, Thomas White, received just over five years after a prosecution in the United Kingdom, which is generally less draconian).
That should raise eyebrows when all federal cases are prosecuted by the same agency, the US Department of Justice. And when Congress voted in 1986 to make the federal justice system much harsher—parole, for example, was abolished—the rhetorical name of the game was consistency. Lawmakers were concerned that some federal judges were too “soft” on crime, so greater reins had to be placed upon them to prevent injustice. Thus, the sentencing guidelines were created.
Dr. Fraga found stunningly awful racial disparities.
“Dealing in Lives,” a new report by Dr. Alex Fraga at the Drug Enforcement Policy Center of Ohio State University Moritz College of Law, gives a fuller picture of how those “tough-on-crime” era reforms failed by that consistency measure.
Studying federal life and de facto life sentences for drugs in federal courts from 1990 to 2020, Dr. Fraga found stunningly awful racial disparities. Federal life sentences are practically reserved for defendants who are Black (62.4 percent) or Hispanic (22 percent). Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.
In addition, many people were punished more harshly for wanting to exercise their constitutional rights. As Fraga writes, “An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”
When the system is largely a conveyor belt of plea bargains, with over 90 percent of cases never going to trial, “astonishing” is right. Defendants who demand that prosecutors meet their burden of proof are often hit with harsher charges and sentencing outcomes. This may partly explain the disparity in the Silk Road cases; Ulbricht went to trial, while Farrell pleaded guilty. The phenomenon is usually called the “trial penalty,” though some advocates for mass incarceration like Bill Otis, a one-time nominee to the US Sentencing Commission, call it the “pleading bonus.”
Just five districts—three in Florida, one in Virginia and one in South Carolina—accounted for 25 percent of life sentences imposed for drug trafficking during the study period.
Yet another layer of inconsistency and arbitrariness in federal drug sentencing exposed by the report covers is geography-based. Just five districts—three in Florida, one in Virginia and one in South Carolina—accounted for 25 percent of all federal life and de facto life sentences imposed for drug trafficking during the study period. For context, there are 93 federal court districts in the nation. Each has its own presidentially-appointed US attorney, who enjoys a wide band of discretion on who to charge and with what.
How could this happen? Despite ostensible efforts toward uniformity, federal courthouses in different parts of the country have developed their own local legal cultures. For example, in southern Georgia, there is no public defender office for impoverished people charged with federal crimes; they receive appointed attorneys who are often uninvested and lack expertise in criminal law. That district also has some of the harshest sentencing outcomes in the country.
This extends to the behavior of prosecutors and judges. US attorneys, even with their wide discretion, must listen to higher-ups at the Department of Justice when making certain decisions. And federal judges, despite enjoying lifetime appointments post-Senate confirmation, contribute to sentencing trends with their own ideological biases. Some judges grant reprieves from the non-mandatory but highly recommended sentencing guidelines more than others. Other judges are the opposite, looking to sentence defendants to the harshest possible sentences under law.
It is especially noteworthy that federal life or de facto life sentences are heavily clustered in the South. State courts below the Mason-Dixon line are notorious for their harshness, which many commentators attribute to a legacy of racism that produced both slavery and Jim Crow laws. The other harshest punishment under law, the death penalty, also uniquely thrives in the South. Federal drug sentencing is yet another area where the South has outpaced the nation in extreme punitiveness.
Ultimately, though, little can be done about local legal cultures in federal court, because of the difficulty of rationalizing the work history and cultural biases of the actors shepherding case outcomes.
“Thankfully, these disparities and the number of life sentences imposed have declined over time after purposeful policy reform.”
More can be done about the law itself. Congress can alter drug statutes in the criminal law, reducing maximum penalties for various charges. It can also order the US Sentencing Commission to redraft its guidelines to reduce the harshness of federal drug sentences, which would be in line with some of the Biden administration’s rhetoric about the drug war, if not always its actions.
“Federal life sentences have not been imposed evenly by race, drug type, and even geography over the last 30 years,” Dr. Fraga told Filter in an emailed statement. “Thankfully, these disparities and the number of life sentences imposed have declined over time after purposeful policy reform. These reforms have also undoubtedly helped many of those in this report receive back-end relief, yet recent numbers from the Sentencing Project show that roughly 1,500 people are currently serving federal life sentences for drugs.”
“Each of these sentences comes at extraordinarily high human and financial costs,” she continued. “Current reform efforts such as the EQUAL Act would close the crack cocaine disparity, provide a safeguard against the vast disparities seen in the report and, through retroactive application, benefit those still serving life and de facto life sentences for drugs.”
Given the racial justice and civil liberties implications of Fraga’s findings, pursuing these and other forms of progress isn’t just an option, but a duty.