Before I start I just want to say just how thrilled I am to be here, not simply because I’m an obsessive TPMCafe reader but because drug policy is so rarely discussed and debated in a such a widely read forum as TPM. Huge thanks to Andrew, Josh and the whole TPM crew for having me. I’ll begin by providing some background about how I formed the thesis of my new second book, Snitch: Informants, Cooperators and the Corruption of Justice, which was published by Public Affairs last week: the federal sentencing guidelines for drug related offenses established in the mid-late 1980s and how such policies have a largely unregulated “cottage industry of cooperators” who routinely fabricate evidence about others in order to receive reduced sentences for themselves.

On a freezing January day in 2003, federal agents raided the midtown Manhattan offices of Murder Inc., a hip-hop record label run by Irv “Gotti” Lorenzo. The feds believed that Lorenzo was laundering drug proceeds from a Queens-based drug kingpin named Kenneth “Supreme” McGriff and were looking for evidence to support their suspicions. In filings with the U.S. District Court, prosecutors alleged that Murder Inc was funded with drug money and, more dramatically, that Lorenzo was not the CEO of Murder Inc but merely the public face of the company. Federal investigators said that “true owner” of the label was drug-lord McGriff. Such charges—if true—were stunning.

Back then, Murder Inc was perhaps hip-hop’s most profitable record label, generating millions of dollars in income for its parent company, entertainment giant The Universal Music Group. Inspired by a case that seemed like a real life marriage of gangsterism and gangster rap, I quickly started working a book on about Murder Inc the investigation called Queens Reigns Supreme. For nearly two years, I researched the Murder Inc case, interviewing dozens of people from Irv Lorenzo himself to high-level executives at The Universal Music Group to former hustlers who worked for Supreme on the streets of Queens. Yet I could find no evidence of money laundering on Irv’s part. Instead, a very different story emerged: Lorenzo was a middle class kid from Queens with a truly entrepreneurial spirit who created Murder Inc in the late 1990s after years of working as a low level A&R representative. How, I wondered, did the federal government arrive at the conclusion that Lorenzo built his music industry empire with drug money? Was it a misinterpretation of the record label’s sinister-sounding name? Or did the feds simply not believe that Irv could have a legit relationship with a gangster like McGriff?

When Lorenzo finally went to trial in federal court on money laundering charges in the late fall of 2005 I found out how the feds wove their money laundering narrative: informants and cooperators told them it was so. In the courtroom, informants and cooperators offered fantastic tales of money laundering—one story had it that cash was hauled into Murder Inc’s offices in garbage bags—with little or no corroboration by prosecutors. And the credibility of the informants and cooperators themselves was not just flimsy but essentially non-existent. One cooperator, a onetime hustler who worked for Supreme, admitted that he didn’t know what the basis for Irv’s relationship with Supreme was because he was in prison when the pair met. He also proudly proclaimed on the witness stand that he would tell lies about Lorenzo as long as he received a reduction in his own sentence stemming from firearm charges at the conclusion of the case. As I sat in the courtroom watching the trial unfold, I was shocked. After all, this was an investigation involving the expenditure of millions of taxpayer dollars and years of work from a sprawling team of federal agents from the DEA, FBI, ATF and IRS. How could the federal government rely so heavily on fabulists and fabricators to make its case? Was the Murder Inc investigation —which ended with Irv Lorenzo and his brother Chris being acquitted on all of the money laundering counts against them—an anomaly or the norm?

So I began working on a new book—Snitch—to answer this question. In the process of researching the book, I pored through thousands of pages of evidence and courtroom transcripts from the case files of defendants in the federal court system and interviewed dozens of criminal defense attorneys, lawmakers, and criminal justice policy experts. Here’s what I discovered: since the establishment of the federal sentencing guidelines in the mid-late 1980s—specifically the mandatory minimum sentences for drug related offenses which provide for extraordinarily punitive punishments for the sale or possession of even small amounts of crack cocaine—a huge and largely unregulated cooperator institution has emerged in its wake, resulting in the arrest and conviction of innocents and the corruption of prosecutorial practices. Because Section 5K1.1. of the sentencing guidelines allows for a judge to make a significant “downward departure” (or sentencing reduction) from the guidelines for a defendant who is deemed to have offered “substantial assistance” to the federal government, cooperators often fabricate evidence and falsely implicate others. Of course, cooperators are a necessary tool in building cases ranging from drug conspiracy to public corruption and providing some benefit cooperators for assisting prosecutors is certainly reasonable. But the problem with Section 5k1.1 is three-fold: first, because cooperation is so central to receiving a sentence reduction—particularly when faced decades long prison terms that are common in the federal criminal justice system—there is nearly overpowering incentive to lie and fabricate evidence; second, because cooperators are rarely punished by federal prosecutors even when they are caught committing perjury on the witness stand, cooperators literally line up to “lie on” others in order to receive the “downward departure” from the sentencing guidelines; third, Section 5K1.1 and mandatory minimum sentences—particularly in regards to crack cocaine which until recently were 100 times more severe than those for powder cocaine—have created a system in which cooperators induce suspects to sell them specific amounts of a drug in order to trigger the longest sentence for the suspect and therefore, the sharpest sentence reduction for themselves. Section 5K1.1 and the mandatory minimums for drug related offenses, then, turns drug enforcement on its head: cooperators do not work “up the ladder” in a drug organization but instead turn on fellow retail dealers who sell them specific amounts of a drug.

Street hustlers and criminal defense attorneys call this process “The 5K Game.” Indeed, one criminal defense attorney dubbed a cooperator in a recent drug conspiracy case that a “graduate of 5K University.” Why? Because the cooperator cooperated in a federal drug case in Pennsylvania the early 1990s, received a huge sentencing reduction as a result and then hit the streets and committed murders for hire in New York during the late 1990s and beyond. When he became ensnared in a murder and drug conspiracy case in 2007, he entered into a cooperation deal yet again. This cooperator’s tale elicits yet another fatal flaw of the cooperator institution: cooperators are often much, much more dangerous than the defendants they have cooperated against. Unsurprisingly, residents in inner city neighborhoods where such dangerous cooperators roam free are not happy with the effects that the “5K Game” is having on their communities. Indeed, I believe this anger with the unregulated cooperator institution is at the very root of the much publicized, yet little understood “Stop Snitching” phenomenon. While antipathy towards informants and cooperators has existed for decades—former FBI director William Webster famously remarked that “there is a tradition against snitching in this country”—the evils of the “5K Game” and mandatory minimums for drug related offenses have caused an explosion in anti-law enforcement sentiment in recent years, particularly among minority populations who are most affected by such policies. As criminologist David Kennedy told The Atlantic Monthly in April of 2007, “this [mistrust of law enforcement] is the reward we have reaped for 20 years of profligate drug enforcement in these communities.”

Frustratingly, reform of the cooperation process—and perhaps more importantly, the sentencing guidelines—has moved at a crawl which is unfortunate because mistrust of law enforcement has helped push down clearance rates in major crimes in cities like Baltimore and New Orleans and our system of prisons and jails has become so sprawling and so inequitable in terms of who it imprisons that Virginia Democratic Senator Jim Webb recently proclaimed that it tests “ the limits of our democracy and push the boundaries of our moral identity.” So, to get the discussion going, I’d like to offer a few suggestions regarding sentencing reform and an overhaul of the cooperation process. Cooperator and informant testimony must be corroborated by prosecutors with evidence; cooperators who give false statements to a grand jury or commit perjury on the witness stand should have their deals torn up or face indictment; and cooperation deals should be given much greater scrutiny—for example, limits should be placed on the number of times an individual can receive a cooperation deal and prosecutors should be forced to apply much greater discretion in who is given a deal (it makes no sense to give the most dangerous member of a drug conspiracy a cooperation deal). Most importantly, it is long past time for a dramatic overhaul of the sentencing guidelines, particularly when it comes to drug related offenses. We need to move to a qualitative versus quantitative system of punishment. As Mark Kleiman wrote in the American Interest earlier this year, “the current system of enforcement, which bases targeting and sentencing primarily on drug volume, should be replaced with a system focused primarily on conduct.” Why? Because our current system is a burdensomely expensive failure both morally and financially. Drugs are cheaper, more pure and just as readily available as anytime in our recent history even our system of prisons and jails has grown to the point where more than 7 million Americans are under some form of correction supervision, including probation and parole (of course, not everyone in prison or jail is there for drug related offenses but as the Department of Justice’s Bureau of Justice Statistics notes “Of cases concluded in Federal district court since 1989, drug cases have increased at the greatest rate.” The BJS also notes that the number of adults for drug abuse violations has risen from 322,300 in 1970 to 1,654,600 in 2005. “After Thirty-Five Years and $500 Billion,” proclaimed a great recent investigative piece by Ben Wallace Wells in Rolling Stone, “Drugs Are as Cheap and Plentiful as Ever.” Rolling Stone rightly characterized the 15,000 word Wells piece as “An Anatomy of a Failure.” Those who live in communities most affected by the drug war know that it is a failure and, encouragingly, there is growing awareness among prominent politicians and even the United States Sentencing Commission that highly punitive punishments for drug related offenses are ineffective and unjust. Barack Obama recently offered strong criticism of mandatory minimums, arguing that “We have a system that locks away too many young, first-time, non-violent offenders for the better part of their lives - a decision that's made not by a judge in a courtroom, but all to often by politicians in Washington and state capitals around the country.” And this year, the United States Sentencing Commission proposed new sentencing guidelines for crack cocaine related offenses. Under the proposal, possession of 5 grams of crack will now bring 51 to 63 months in prison (the previous range was 63 to 78 months) while sale of 50 grams of the drug will result in 97 to 121 months (the old guideline range was 121 to 151 months). The issue of retroactivity of 19,500 crack offenders sentenced before the change has not yet been settled and is the subject of considerable debate (www.talkleft.com/story/2007/12/3/123415/803). Yet even these sort of modest changes in sentencing—the guidelines still largely remain in force—have been fought by the Department of Justice. Why? Incredibly, it argues that extraordinarily punitive sentences are needed—even if deemed unjust by the United States Sentencing Commission and criminal justice policy experts—in order to get defendants to cooperate. At a 2006 United States Sentencing Commission hearing on federal cocaine sentencing policy, United States Attorney Alexander Acosta said “Simply put, if these drug defendants are not facing significant prison time, they simply will not cooperate in the investigation.” A clear message must be sent to the Department of Justice by politicians and the public alike: it is your job to serve justice, not simply “make cases.”