How Appealing War on Drugs

Federal Judge Calls War on Drugs A Failure


On June 19, the Fourth Circuit Court of Appeals ruled that a sentence of life without the possibility of parole was indeed the legally correct one for Tony Gregg, a Richmond, Virginia cocaine addict and sometimes penny ante drug dealer.

The appeals court ruling came about after the federal judge who originally presided over Gregg’s trial tried to a way around the federal sentencing guidelines that mandated an automatic life sentence for a 3rd felony drug conviction. Instead, the judge attempted to reduce Gregg’s sentence to 25 years in prison.

The 4th Circuit’s three judge panel ruled that the original judge had erred by trying to reduce the sentence, and that Gregg was obliged to serve an iron clad LWOP. Period, end of story.

While the 4th Circuit’s panel was unanimous in their decision, one of the three justices, Judge Andre Davis, couldn’t let the matter go quite so simply, thus wrote his own concurring opinion—in the form of what amounts to a long Op Ed.

Davis is a skilled and impassioned writer and his essay/opinion is worth reading in its entirety. (It starts on p. 19 of the appeals ruling which you can access here.)

I’ve excerpted (and edited) some of the most relevant sections below:

The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond.

[So] the judge….elected to reconvene the sentencing proceeding and to impose, instead, a twenty-five year, within Guidelines sentence. As the panel opinion makes clear, we are constrained to undo the district court’s stab at achieving a more just sentence.

The record shows that Gregg was a classic “utility player” in America’s forty-year “war on drugs”: user, seller, “snitch.” A tenth-grade drop-out (after repeating the second grade and the seventh grade) with four half-siblings, he began to use illegal narcotics in his early teens. For a time, he lived in an abusive family environment; later, he moved between his mother, grandmother, and father, sometimes in Virginia, sometimes in Ohio.

As a young man, he attempted suicide more than once (although he described the episodes as mere attempts to “get high”). Throughout his 20s and early 30s, he was in and out of jails and prisons on a regular basis, sometimes for assaultive behavior. He was convicted of illegal gun possession in 2001 and served a three-year federal prison sentence.

Later, once again released from incarceration and having adjusted reasonably well upon his return to free society, in consideration for unspecified monetary compensation, he became a highly-valued, highly-effective confidential informant for the Federal Bureau of Investigation’s Violent Crime Task Force in Richmond, on whose behalf he engaged in half a dozen undercover drug transactions from mid-2008 through early 2009.

Sometime in early 2009, during his habitual association with drug users and dealers while working on behalf of the FBI to prosecute others involved in the drug trade, Gregg fell off the wagon and began to use and sell illegal narcotics again……

…[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.”

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison…..

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure…. Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful … the concern about drugs and drug problems is, if anything, magnified, intensified.”

I share the district judge’s dismay over the legally mandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.

As a nation, we are smart enough to do better.

(NOTE: A thank you to Doug Berman and Sentencing Law and Policy for pointing out the eloquence of Davis’s concurring opinion.)


Now that we’re on the topic, it seems like a good time to highlight an exceptionally illuminating report on the cost/benefit of the drug war by my friend, the AP’s Martha Mendoza.

Here are a few relevant clips:

After 40 years, the United States’ war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what? Drug use is rampant and violence even more brutal and widespread.

Even U.S. drug czar Gil Kerlikowske concedes the strategy hasn’t worked.

“In the grand scheme, it has not been successful,” Kerlikowske told The Associated Press. “Forty years later, the concern about drugs and drug problems is, if anything, magnified, intensified.”

This week President Obama promised to “reduce drug use and the great damage it causes” with a new national policy that he said treats drug use more as a public health issue and focuses on prevention and treatment.

Nevertheless, his administration has increased spending on interdiction and law enforcement to record levels both in dollars and in percentage terms; this year, they account for $10 billion of his $15.5 billion drug-control budget.


Using Freedom of Information Act requests, archival records, federal budgets and dozens of interviews with leaders and analysts, the AP tracked where that money went, and found that the United States repeatedly increased budgets for programs that did little to stop the flow of drugs. In 40 years, taxpayers spent more than:

$20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico — and the violence along with it.

$33 billion in marketing “Just Say No”-style messages to America’s youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have “risen steadily” since the early 1970s to more than 20,000 last year.

$49 billion for law enforcement along America’s borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.

$121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.

$450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the U.S. were serving sentences for drug offenses.

At the same time, drug abuse is costing the nation in other ways. The Justice Department estimates the consequences of drug abuse — “an overburdened justice system, a strained health care system, lost productivity, and environmental destruction” — cost the United States $215 billion a year.

Harvard University economist Jeffrey Miron says the only sure thing taxpayers get for more spending on police and soldiers is more homicides.

“Current policy is not having an effect of reducing drug use,” Miron said, “but it’s costing the public a fortune.”

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