Is Mass Incarceration for Drug Offenses a Myth?

Opinions on criminal justice reform cannot always be properly expressed in 140 characters, but apparently someone forgot to mention that to George Brauchler. Best known as the prosecutor in the Aurora movie theater shooting trial, Mr. Brauchler recently learned this lesson the hard way.

The high-profile district attorney sent out a tweet saying, “‘Mass incarceration’ is a myth. Individuals with their own attorneys were convicted and sentenced individually.” His tweet was written as a response to an opinion piece in Revolt titled, “Pushing Our Elected Officials To Take Action On Criminal Justice Reform.”

Not surprisingly, Brauchler was immediately met with backlash both from members of the public and the criminal justice community. Roshan Bliss, a member of the Denver Justice Project, said, “The DA can say whatever he wants but it doesn’t [change] the fact that the U.S. is currently incarcerating more people at a higher portion of its population than any nation.” In no area of the law is this truer than with drug crimes.

Incarceration in the United States on a “Massive” Scale 

Mr. Brauchler is partially correct. We don’t try “mass” groups of people together and give them all the same sentence. That’s the definition of “mass incarceration” that he seems to be trying to use. But if that’s the case, then he completely missed the point of the article.

To put it simply, the United States has a prison problem. Our country is home to 5% of the world’s population overall, but holds over 20% of the world’s incarcerated population. 1 in 100 adults in the United States are incarcerated.

This has led to vastly overpopulated prisons in our country. Over 11 million people come in and out of local jails a year, largely due to overcrowding. Keep in mind that keeping one person in prison can cost a state tens of thousands of dollars a year.

Denver Drug Crimes Lawyer

The Crime Report notes, “Although in 2010 it cost more than $31,000 to keep someone in prison for a year, the study [by the Vera Institute of Justice] also found a wide range in the cost of imprisonment: from $14,603 per inmate in Kentucky to $60,076 in New York.  But a state’s per-inmate cost has little to do with efficiency or effectiveness.”

Why are so many people put in jail? Over half of the people in prison in the United States are there due to nonviolent drug offenses. Of those cases, 27% are marijuana-related.

Colorado has legalized the recreational sale and use of marijuana, but even our state still puts people in jail for marijuana-related crimes. If you are caught carrying more than one ounce of marijuana, you could be charged with a crime. And in many cases, Colorado hasn’t lessened the sentence for prisoners who were put in jail for marijuana-related crimes that are now legal. 

Public Defenders and the Burden They Carry

Mr. Brauchler’s tweet also ignores another “mass” reason that many nonviolent drug offenders end up in prison: large numbers of them end up using public defenders.

Bliss brings this point up as well. Depending on the jurisdiction, 60-90% of criminals seek legal counsel from a public defender for their trial. This is often due to the fact that people cannot afford private legal counsel – or at least that they believe they can’t afford it.

As a result, a large percentage of public defenders are overwhelmed and cannot give proper attention to each individual case. On average, to give each case the appropriate amount and time and work it deserves, a public defender would need 50% more time than they are allotted in one year.

Let me say that again: that means they attempt to do a year and a half’s workload in a single year. Forget properly handling your case – many public defenders are barely hanging on.

A guilty plea or plea bargain is usually advised for these cases, because there is not enough time available to effectively construct a proper defense strategy for each individual case. But mandatory minimum sentencing laws for drug offenses come with long jail sentences – even if judges want to lessen penalties, they can’t. Sending drug offenders to prison for life is not uncommon in our country or our state.

Brauchler’s Response to the Backlash

Brauchler responded to the backlash from his tweet with the following statement:

“My point in sending out that tweet, as inartful as it apparently was, was to reject what I think this movement has become, and that is a vehicle for people who are anti-police, anti-prosecutor, and anti courts, to shift the blame away from them and onto individual responsibility that got those people in trouble in the first place.”


His quick tweet on mass incarceration for drugs offenses ignores the issues surrounding mandatory minimums, the lack of support for public defenders, and the thousands of people sentenced to life and other harsh penalties for nonviolent crimes. And he wants to talk about personal responsibility? Pretty tough sell when the problems are clearly systemic.

Luckily, these issues are being addressed. Colorado has introduced bills that will reduce or eliminate mandatory minimum sentences for a wide range of crimes. President Obama has shortened the sentences of over 200 nonviolent drug offenders. Federal lawmakers are also making efforts to reduce mandatory minimum sentences.

Colorado Drug Lawyer

But these bills take time and do not go into effect immediately. Until then, if you’re charged with a drug crime, your best chance is to get the best lawyer you can find as quickly as possible and start crafting a strong defense.

About the Author:

Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.