For my final post, I’d like to return to the federal sentencing guidelines. It’s been a historic week for sentencing: the U.S. Supreme Court ruled that federal judges are free to disagree with the sentencing guidelines and can impose what they believe to be reasonable sentences even if they are lower than the guideline range. Also this week, the United States Sentencing Commission (USSC) voted to give federal inmates a chance to reduce their sentences based on the new, shorter sentences for crack cocaine related offenses that the USSC established earlier this year. Such reforms are long overdue as efforts to revise the guidelines—specifically the notorious 100:1 ratio between crack cocaine and powder cocaine related offenses—have repeatedly stalled in Congress. And for at least a decade, the USSC has issued reports on the sentencing disparity between crack and powder cocaine only to have Congress reject or ignore its findings.

But as I read a front-page piece in the Washington Post piece about the USSC’s retroactivity ruling, I couldn’t help but note the following that brought me right back to much of what I discovered while working on Snitch:

“Karen Garrison, a D.C. mother whose twin sons, both Howard University graduates whose convictions were based on witness testimony [emphasis mine], said: ‘This is the first time I have really been excited about anything.’ Lamont Garrison's 19-year sentence could be reduced by four years, and Lawrence's sentence could be reduced by three."

Who are Lamont and Lawrence Garrison? Here’s some background about their case, via FAMM (Families Against Mandatory Minimums):

“…on April 8, 1998, three days after their 25th birthday, a month before graduating Howard, their lives changed forever. Federal agents busted into the Garrison's home, arrested Lamont and Lawrence, and took them into custody, where they later learned that were accused of taking part in a multi-million-dollar drug conspiracy.

Lawrence and Lamont say they knew only one person involved in the case: Tito Abea, a mechanic they had hired to repair their uncle's car. According to Lawrence and Lamont, their only contact with Abea had to do with his business; they were having extensive work done on their uncle's car and Abea botched the job then refused to fix it. The twins argued heatedly with Abea and called the shop at all hours of the day and night trying to get Abea to agree to repair the car. The twin's mother and uncle called the shop repeatedly too, to no avail.

What Lawrence and Lamont didn't know was that Tito Abea was a major player in a large, 20-person powder and crack cocaine operation. In order to get a reduction from the hefty prison term he was facing, Abea implicated others in the conspiracy (emphasis mine). Two of the people he implicated were the Garrison twins. Abea testified that he supplied the Garrisons with 1-2 kilos of cocaine every week for 10 weeks in 1996, and then again in 1997. Soon, other conspirators were following Abea's lead and testifying that they had seen some of these transactions take place.

There were no drugs, drug paraphernalia, or other evidence of drugs found on the Garrisons or in their home. There was never any record of them selling drugs, other than the testimonies from the known and now-convicted drug dealers in the conspiracy (again, emphasis mine). And there was no proof that, like the other defendants, Lawrence and Lamont derived money and other benefits’ from two years of drug dealing. In fact, both brothers were living in their mother's house and had thousands of dollars in college loan bills to pay off: Lamont's bill alone was $40,000.

Sure of their innocence, the Garrisons went to trial. They did not have enough money to hire one lawyer, let alone two, so they both ended up with court appointed attorneys who failed to gather key information that the family feels would have disproved the government's only other evidence against the brothers: phone records. The government says the brothers couldn't have been merely calling Abea about the car because they called too frequently and at strange hours.

Tito Abea gained tremendously from implicating Lawrence and Lamont: he only got three years in prison, even though he was the ringleader of the cocaine operation (once again, emphasis mine). Lawrence Garrison received 15 years in federal prison. Lamont Garrison was given 19 years, four years more than his brother, for ‘failure to accept responsibility’ when he testified in court that he and his brother were innocent.”

The Garrison case highlights just about all of the flaws with the federal criminal justice system that I chronicle in Snitch: uncorroborated cooperator testimony, defendants who cannot afford an attorney and/or a private investigator to adequately investigate corroborator testimony and therefore being convicted regardless of the thin factual basis of the charges against them; the most culpable member of a drug operation receiving the shortest sentence because of a cooperation deal; and, finally, excessive prison sentences for drug related offenses.

At several points during the TPMCafe discussion, the word “anecdotal” has been used to describe my work. As Alexandra rightly noted here, the cooperation process is shrouded in secrecy. We know the most minimal of facts about the cooperator institution (i.e., about 20% of convicted defendants receive sentencing benefits under section 5K1.1 ). So, any effort to investigate cooperator deals can no doubt be perceived as anecdotal because this is not a part of the criminal justice system that is—to put it mildly—rife with transparency.

Still, I believe that the core ideas of Snitch—that the sentencing guidelines have curtailed judicial discretion resulting in a cookie cutter system of justice, that mandatory minimum sentences for crack cocaine related offenses are not rooted in sound science but instead crack era hysteria—hold up well, particularly after this week’s sentencing developments.

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Informants and cooperators are enormously valuable law enforcement tools. In fact, as an investigative journalist I’m in unique position to understand the value of good sources of information. But I think we should be a lot more skeptical of the unfettered use of informants and cooperators—skepticism, after all, can result in reform of the system that ultimately makes it work better (the guidelines governing use of the informants arose out of the late 1960s/early 1970s when lawmakers and the public rightly recoiled at the behavior of informers run amok among civil rights organizations and the KKK).

What will it take to muster a new sense of skepticism now? To me, the most ominous development in the increasing use of informants and cooperators is their use in so-called “pre-emptive” indictments of alleged terrorists (in which suspects are indicted for their intentions not actions or even means or ability to carry out a terrorist act).

The results have been pretty disastrous so far.

And even when defendants are convicted there is little doubt that informants have introduced the idea of a potential terror plot to an unwitting suspect (see the chapter in Snitch called “Brotherhood of the Bookstore” in which an informant creates a fictional terrorist organization called “The Brotherhood” and lures a worker at an Islamic bookstore to join him in a terror plot on the 34th Street subway station in Manhattan).

As a result, we’ve sown massive mistrust among the Muslim community in just a few short years (an Islamic version of ‘Stop Snitchin” is no doubt in the works).

The sentiments of a Muslim woman interviewed by Amanda Ripley of Time Magazine for a piece about one such “pre-emptive indictment” (this time involving an alleged plot against Fort Dix) should send chills down the spine of anyone who would like to see the feds successfully indict terrorists and perhaps more importantly, see law enforcement gain the cooperation and confidence of the Muslim community in such efforts:

“While reporting this story, I met with a couple who had helped found the Sunni mosque attended by the Duka brothers. The couple had immigrated from India decades ago. We sat in their upscale suburban home and talked about the Dukas, whom they didn't know very well, and their fears. They were convinced that their phones were being tapped. They had stopped watching mainstream TV news and were even thinking of leaving the country. ‘This is a country which was great,’ the woman said. ‘That's why we all came - freedom of speech, justice, things that were not even to be found in Muslim countries. But it is vanishing every day.’”

Thanks again to Andrew, Josh and everyone at TPM for having me—and thanks again to Alexandra, Douglas, John and Mark for participating. Looking forward to hearing what TPM readers think of Snitch and please stop by www.ethan-brown.com for further discussion of the book and drug policy/criminal justice issues in general.