Jul 14, 2020

When Alice Johnson ran to embrace her family after her release from prison, she was a 63-year-old grandmother who spent almost 22 years behind bars. But Johnson was supposed to die in custody. 

The co-defendants who testified against her received sentences ranging from probation to 10 years. Johnson received no such leniency. Rather, Johnson, an African American woman and first-time offender, was sentenced to life without parole for her participation in a nonviolent drug conspiracy. But for President Trump commuting her sentence in 2018, Johnson would have paid for her one-and-only mistake by remaining in prison until her dying day.

The killings of Breonna Taylor and George Floyd remind us of the racial disparities that are indicative of a criminal justice system in dire need of reform and a drug war that needs to end. But discussion of criminal justice reform rarely focuses on how the crime of conspiracy contributes to unfair sentences and mass incarceration, particularly of Black Americans. It is time to acknowledge that the doctrine of criminal conspiracy is unsound, unnecessary and unjust.

Conspiracy, the notion that a mere agreement between two or more people to violate the law is itself a crime, has long been considered a serious threat to fairness in the administration of justice. 

Generations ago, in 1948, U.S. Supreme Court Justice Robert Jackson stated, “The modern crime of conspiracy is so vague that it almost defies definition,” and he also observed that it “will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.”

In other words, conspiracy introduces confusion into the justice system and imprisons those who might agree to violate the law but do not actually commit the supposedly agreed upon crime. 

Had Justice Jackson’s words been heeded, the drug war might not have waged so much destruction on urban families. Instead, as the Drug Policy Alliance reports, “One out of every 14 children in this country has had a parent imprisoned.” As the study they link to on that statistic also shows, Black children have borne the brunt of the drug war’s impacts and are twice as likely to lose a parent to incarceration compared to white children. 

As the NAACP notes, “African Americans and whites use drugs at similar rates, but the imprisonment rate of African Americans for drug charges is almost 6 times that of whites.”  When conspiracy laws become weapons in the drug war, Black families are more likely to be the casualties.

Federal drug-related conspiracy laws are pernicious because, as The Sentencing Project describes, “Sentences for federal drug crimes are based on the quantity of drugs involved, not the individual’s role in the crime.”

Case in point, Kemba Smith had to personally pay for the crimes of her abusive boyfriend, who headed a multi-million-dollar crack operation. Although prosecutors conceded that they had no evidence that Smith participated in drug trafficking, the government made little distinction between the supporting roles Smith played and the crimes of her boyfriend.

As a result, Smith’s conspiracy charge resulted in a sentence of over 24 years. Nearly a quarter century of imprisonment for someone else’s crime is not justice; it’s ruthlessness.

We must resist punitive and overzealous sentencing and take care to ensure that the laws Congress passes are just. With that in mind, I recently offered an amendment to the Emmett Till Antilynching Act, a bill that would label any conspiracy to violate a federal hate crime as a lynching, punishable by up to 10 years in prison. My amendment would preserve harsh sentences for the hateful crime of lynching but ensure that conspiracies involving minor altercations and lesser crimes are not categorized as a lynching.

Unfortunately, recent events validated this concern and demonstrated the tragic illogic of conspiracy laws. In May and June, protesters sympathetic to the Black Lives Matter movement defaced St. John’s Episcopal Church in Washington, D.C. Damage to religious property classifies as a federal hate crime. 

Because more than one person was involved, had the Emmett Till Antilynching Act been federal law, those who conspired to deface St. John’s Church could have been prosecuted for lynching and faced a decade in prison. If the first prosecutions under a federal antilynching law were made against vandals, then Congress would have finally achieved the height of unintended consequences. We cannot fight injustice by passing laws that create more injustice.

Although criminal justice and police reform have thus far stalled, I sincerely hope it is a temporary setback and that Congress reconsiders these worthy causes soon. And, when it does, Congress could make significant progress by repealing conspiracy laws that result in easier convictions and cruel prison sentences that either do not fit the crime or apply when no crime has been committed at all. 

Rand Paul is a U.S. senator from Kentucky.