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December 13, 2013

"Growing acceptance of marijuana no help to pot convicts serving life in the joint"

The title of this post is the (too clever?) headline of this notable new article from FoxNews.com.  Here are excerpts:

John Richard Knock realizes he’ll likely die in a 12-by-10-foot cell in federal prison. Locked behind bars on a marijuana trafficking conviction, America's growing acceptance of the drug is cold comfort to the 66-year-old who was handed two life sentences, plus 20 years — for a first-time conviction.

“I don’t think about it, I just try and stay healthy,” Knock told FoxNews.com of his sentence via phone from the Allenwood Federal Correctional Complex in Pennsylvania. “I just wish society would look at this and say, ‘Hey is this fair?’”

The sentence makes Knock one of 3,278 prisoners recently identified by the American Civil Liberties Union who are serving life without parole for nonviolent drug and property crimes. Nearly four in every five were convicted of crimes involving drugs, including marijuana.

While Knock, who prosecutors said was part of an international marijuana trafficking scheme, has been serving his time, the drug has become increasingly accepted. Recreational use of marijuana is now legal in Colorado and Washington, and 15 other states have also eased restrictions, most for medical purposes. In October, for the first time, a Gallup poll found that a majority of Americans now favor legalizing the drug after reaching 50 percent in 2011....

But Knock and most others serving life for pot convictions were typically traffickers and not simply users, some experts note. Profiting from drugs — even marijuana — is a far cry from puffing on a joint, they say.

"Those who traffic in illegal drugs, who prey on our nation’s youth with poisons that destroy bodies, minds, and futures, should find no refuge in the criminal justice system," John Walters, who was drug czar under President Bush, wrote in a 2007 report. "Long prison terms, in many cases, are the most appropriate response to these predators."

Knock’s sister, Beth Curtis, started lifeforpot.com two years ago to raise attention to her brother’s plight and other prisoners facing similar fates. She hopes that society's changing views on marijuana could prompt a review of the sentences of her brother and others. “When public opinion reaches some kind of tipping point, I think most lawmakers will jump out in front of the issue,” she said. “I don’t see why they would find any value in continuing to oppose [legalizing marijuana] if their constituents want it legalized.”

Some attorneys contacted by FoxNews.com said Knock’s case is far from unique. Randall Brown Johnston, a Missouri-based criminal defense attorney who formerly worked as a prosecutor, recalled the case of Jeff Mizanskey, who was found guilty of possession of five pounds of marijuana in 1993 and was later sentenced to life without parole. “This was a brutal sentence,” Johnston told FoxNews.com. “Unfortunately, the difference between one judge and another can make all the difference. This judge was particularly harsh and had a reputation for that.”...

But Johnston also hopes the changing opinion of pot can lead to relief for people doing life for marijuana-related crimes. “There’s been a great change in public opinions about marijuana convictions,” he said. “It may take another 10 years for lawmakers to catch up and maybe go back and revisit the severity of the laws. But these laws are on the books right now and these are nonviolent people. It costs a huge amount of money to lock them up and people can go out and commit a murder or rape somebody and be sentenced to less.”...

Knock, meanwhile, takes some comfort from what happens outside of prison, even if it leaves him little hope of being free. His son, Aaron, 22, recently graduated from Columbia University in New York with an engineering degree.

Regular readers will not be surprised to learn that I think the Eighth Amendment can and should be a basis for defendants like Knock and Mizanskey to seek relief from their seemingly extreme LWOP sentences based on the "evolving standards of decency" that is supposed to inform the application of the Cruel and Unusual Punishments clause. Especially if (when?) a majority of states legalize medical and/or recreational marijuana, I think the case for an Eighth Amendment attack on extreme sentences for first-time marijuana dealers should become pretty compelling. But, as regular readers also know, I tend to have a much more dynamic view of how the Eighth Amendment should be understood than the vast majority of judges considering Eighth Amendment claims.

A few recent related posts:

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Comments

There were laws against witchcraft, being Jewish in England (for 400 years), helping slaves, adultery. Once repealed, doesn't the crime not so much appear cruel, but disappears entirely. The prisoner is being detained for no reason, in violation of the Fifth Amendment. "...nor be deprived of life, liberty, or property, without due process of law..." Since the law no longer exists, there is no due process of law.

Posted by: Supremacy Claus | Dec 13, 2013 11:13:06 PM

I'm sorry, I know this is a serious topic but that headline...oh is that beautiful. I think it's fair to say that serving life in the joint must be a pot convict's version of heaven.

Posted by: Daniel | Dec 14, 2013 12:51:59 AM

Daniel.

As a psychologist, I would like you to step up and step in more to help the lawyer. The sole tool of the law is punishment, andlawyer know little about it.

Posted by: Supremacy Claus | Dec 14, 2013 8:43:50 AM

Recreational pot remains illegal in 96% of our states and 100% of our federal government. Cross-border trafficking in pot remains illegal in 100% of our states and 100% of the federal government.

How this translates into the sort of "growing acceptance" of pot that would warrant reopening the thoroughly closed case of, not merely a recreational user, or an inTRAstate trafficker, or an inTERstate trafficker, but an INTERNATIONAL one, is beyond me.

I am of course willing to look at any decently reliable poll that shows anything approaching public acceptance of huge international shipments, which is what Mr. Knock was doing, so if someone knows of such a poll, please supply a link to it.

The problem is not that Doug has an expansive view of the "living" nature of the Eighth Amendment. The problem is that, even making the exotic assumption that Doug's view is going to be accepted in the law (but, cf. Blewett, en banc), the evidence for "acceptance" of the specific conduct at issue in Knock's case is non-existent.

Posted by: Bill Otis | Dec 14, 2013 10:20:14 AM

Bill, Otis, as stated many times on this blog, you are on the wrong side of history on this issue. That so many lives are being wasted in prison for so trivial a "crime" as distribution of marijana is a shame and disgrace. I agree with S.C. on this one (one of the very few times). Bill, by insisting that these marijuana traffickers be incarcerated for life, you are filled with passionate intensity, thinking you're burning witches, when , in truth, you're just burning old women. Bill, please rethink the matter.

Posted by: anon13 | Dec 14, 2013 10:56:27 AM

anon13 --

I'd be interested in any rebuttal you might have to my post, which concerned whether Doug's view of the "growing acceptance" of pot would be sufficient under ANY view of the Eighth Amendment to reopen this particular defendant's sentence.

P.S. Of course you have no way of knowing where "history" is headed. I was told in high school in the Sixties that supporting the death penalty was the "wrong side of history," and, sure enough, in 1972 the SCOTUS effectively outlawed it.

So who was right?

Let me ask that question a different way: How many hundreds and hundreds of executions have we had since the death penalty supposedly went into the sunset on the "wrong side of history"?

Posted by: Bill Otis | Dec 14, 2013 11:40:58 AM

People who smoke cigarettes should be given life without parole until the cancer kills them

Posted by: Liberty1st | Dec 14, 2013 1:23:11 PM

SC. I must say that your comment confuses me. I thought your view was that the only sincere way to help the lawyer was to kill him.

Posted by: Daniel | Dec 14, 2013 1:43:56 PM

How can it be denied that there is a growing acceptance of Marijuana? Marijuana has not always been illegal. Alcohol has gone through a complete cycle of legal, illegal and now regulated. I would say the trajectory for marijuana is now toward legalization.

Of course we may be side lined by a new push for more government control and intrusion at which point citizens could be jailed for cigarette and sugery soft drink consumption.

Posted by: beth | Dec 14, 2013 3:34:03 PM

beth --

"How can it be denied that there is a growing acceptance of Marijuana?"

It can't, not at present. Which is why I don't deny it.

But I have made two points, neither of which I have seen rebutted. First, "growing acceptance" is not anywhere near enough to support Doug's suggestion that the 8A is on the cusp of requiring re-opening of this defendant's sentence. Second, the fact that support of some liberal objective -- say, abolition of the DP -- is growing, and may even predominate for a while, does not mean that it is the wave of the future. Abolitionism was the "wave of the future" in the 1960's. By the 1990's, it all looked very, very different.

Liberals (and sometimes libertarians) just assume that they have a crystal ball. They have no such thing, and I wish they'd stop thumping their chests as if they do.

Posted by: Bill Otis | Dec 14, 2013 6:42:57 PM

Bill Otis, Anon13 wrote "Bill, by insisting that these marijuana traffickers be incarcerated for life, you are filled with passionate intensity, thinking you're burning witches, when , in truth, you're just burning old women."

You didn't respond to that point.

Posted by: Dave from Texas | Dec 14, 2013 6:44:59 PM

I would much rather tolerate a pot smoker than a cigarette smoker. Bob Marley says it right in his song Legalize Marijuana. Cigarette smoking is dangerous, hazad to ya health. Da Surgeon Genral warns.
So legalize marijuana, right here in sweet Jamaica. Eliminate the slavish mentality.

Posted by: Liberty1st | Dec 14, 2013 7:31:13 PM

Bill, you are most certainly correct that the 8A is not on the cusp of requiring re-opening this defendant's sentence. It is however something to contemplate. How much incarceration do we want to support.

No one has a crystal ball - we must wait and see how much law-enforcement, prosecution and incarceration we demand for non-violent marijuana offenders in the future. Presently we have over 800,000 arrests per year for marijuana and 25% of the population has an arrest record - this does not mean a conviction. This is a very expendive endeavor for government on all levels.

Posted by: beth | Dec 14, 2013 7:40:12 PM

Dave from Texas --

"You didn't respond to that point."

His "point" was to draw a personal caricature of me that has about the same verisimilitude as most caricatures. Since I'm interested in a discussion about Doug's analysis of the reach of the Eighth Amendment on a "living Constitution theory," and not of me, you're quite right, I didn't respond to it.

Ad hominem (such as that I'm "sadistic" on an earlier thread) may be all the rage with the Left, but I'm not all that enthusiastic for it.

P.S. If "failure to respond" were a crime on this blog, several dozen Lefties would be in the can right now for failing to respond to numerous posts of federalist, TarlsQtr, Kent, tmm, guest, MikeinCT and many more thoughtful commenters who tend to be on my side.

Posted by: Bill Otis | Dec 14, 2013 8:05:52 PM

Daniel: This is a misunderstanding about me. I love this country, of course. But I also love the rule of law, an essential utility service, and the lawyer. What I hate is the utter failure of the law, across all subjects. If it were electricity, it would be on 2 hours a day for the rich, and 2 minutes a day for the poor.

I have identified the cause of this failure as the hierarchy of the profession, around 15000 people. If the public oppressed by them, then the lawyer is doubly oppressed, living in fear of personal destruction, no matter how rich and powerful the lawyer might be. If the lawyer is doubly oppressed, the regular street judge is triply oppressed.

When this elite is arrested, tried, and summarily executed for treason, the profession will soar. It will become empirical, instead of supernatural in its doctrines. It will be a third smaller, make four times as much, and become esteemed by the public 10 times more than today.

The business model of this hierarchy is that of the Inquisition, a business driven by high profits, and so stable, it lasted 700 years. Contrary to historical propaganda, they did not go after the mentally ill or mere ordinary Jews. They went after all rich people, took their stuff in plea deals, including only rich Jews, rich non-Jews. Do you really think the Vatican could be built from the collection plate and voluntary donations? It ended only after extreme violence visited this elite. So the remedy is that of the Inquisition, eradication of the hierarchy.

You know psychology. You know some law. Pretend you have one hour to lecture a plenary meeting of appellate judges. What would you like to teach them about punishment, their sole tool? How should these features of punishment inform sentencing decisions?

Posted by: Supremacy Claus | Dec 14, 2013 9:31:24 PM

When I was serving time at USP-1, Coleman, Florida in the mid-2000s (for white collar, non-drug related crimes), I met a man named Jose Elias Sepulveda, who is serving a life sentence for exporting large quantities of marijuana to the U.S. from Jamaica. He doesn't deserve that sentence, he isn't a bad man. The prosecutors manipulated facts to bring him within the 5-year Federal statute of limitations to prosecute Joe Sepulveda, even though he had been out of the business for many years. The prosecutors did this by saying that Joe had not properly withdrawn from a conspiracy involving his cousins, who went into the cocaine business, which Joe refused to participate in. Second, Joe was screwed by a U.S. District Judge in Florida, when he tried to represent himself pro se at trial. The Judge made him appear for 11 days of trialbefore the jury in the same unwashed blue jail uniform (which caused him to stink of body odor and ammonia smell to the jury), and refused to provide for him to receive a razor and shaving cream to cut off a wild and unkempt beard he was compelled to grow in jail. Despite clear U.S. Supreme Court precedent prohibiting Courts from making defendants appear before juries in prison uniforms (which severely undermines the presumption of innocence), the 11th Circuit (in an unpublished opinion) refused to grant Joe Sepulveda a new trial, holding that the unwashed, smelly prison uniform error was harmless. Thee state and Federal governments spedn about $13 billion annually to keep marijuana illegal in this country (including law enforcement and prisons). 45% of all drug arrests in America (about 850,000 per year) are for just marijuana. 14 million Americans per week smoke marijuana, despite its illegality. Recent polls show that 58% of Americans favor decriminalization of marijuana, and the regulation and taxation of marijuana sales like alcohol. Because the states so need and want the tax revenues decriminalization would generate, I believe that marijuana will be decriminalized across America within 5 to 10 years.

Posted by: Jim Gormley | Dec 14, 2013 9:43:05 PM

Bill: One may criticize methodology, but here is a possibly non-partisan source of data.

http://www.gallup.com/poll/165539/first-time-americans-favor-legalizing-marijuana.aspx

I have been concerned about your intellectual consistency. I oppose the current situation of prohibition of a mildly addictive, mostly harmless substance. Meanwhile, highly addictive substances that have killed millions are advertised. I would support the prohibition of alcohol, and tobacco, saving millions of lives, if marijuana is to remain illegal.

However, there is zero public support for alcohol and tobacco prohibition. So the only logical conclusion is to legalize marijuana. Mildly addictive. Kills 50 people, most in car crashes. Has adverse mental effects, but also many mental benefits. Alcohol, higly addictive. Intoxication found in half the murder victims, half the murderers, half the suicides, most pointless fighting. Because prohibition is not returning, intellectual consistency requires the legalization of marijuana.

Posted by: Supremacy Claus | Dec 14, 2013 9:48:52 PM

SC --

For intellectual consistency, shouldn't you also support the legalization of meth, heroin, PCP, Ecstasy, and a bunch of others? Do you?

P.S. My intellectual consistency is comprised of wanting to suppress the use of harmful substances through such means as are acceptable and possible in light of the history, culture, pharmacology, demographics, legal traditions and politics (among a few other things) of the day. An "intellectual consistency" that excludes consideration of these factors has a more common name, to wit, "being a dope."

Posted by: Bill Otis | Dec 14, 2013 10:09:07 PM

Jim Gormley --

If, as you say, there are 14,000,000 people lighting up per week, that means there are 728,000,000 lightings-up per year (assuming only one lighting-up per person per week, which has to be grossly low). If, as you also say, there are 850,000 pot arrests per year, that means there are 0.0011675 arrests per year per joint being lit up. And what THAT means is that the number of arrests per year per joint-being-smoked, rounded off to the nearest whole number, is zero.

Indeed, the number of arrests per year per HUNDRED joints-being-smoked, rounded off to the nearest whole number, is ALSO zero.

I have been saying for a long time that personal use pot is de facto legal, and I appreciate your putting up the statistics to prove the point.

P.S. The number of people sentenced to any jail at all as a result of a personal-use arrest is, of course, vastly less than the number of arrests. So my comments above actually, and substantially, understate the extent to which pot is de facto legal.

Pot legalization is the most overhyped issue around. I'm amazed at the amount of intelligence that gets wasted on it.

Posted by: Bill Otis | Dec 14, 2013 10:40:14 PM

There is no intellectual inconsistency in legalizing marijuana. For intellectual consistency we would have to criminalize the use of alcohol and perhaps tobacco. That would be another big government social experiment gone wrong.

I would also say that your factors for intellectual consistency are yours - perhaps not universal criteria - though they may be fair - they may not stand up to scrutiny. If someone excludes their inclusion I'm not sure that's "being a dope" - it may be a discussion

Posted by: beth | Dec 14, 2013 10:40:30 PM

Bill: I would support the most Draconian of prohibition of alcohol and tobacco, with 10,000 executions a year of dealers and massive lashings of users as a cheap effective punishment. We would then be ahead by 500,000 lives saved and probably a $trillion in social and health costs. All sentences would be mandatory, and carried out upon reading of the verdict. From the experience of Islamic nations, and Methodist families, we know the prevention would have great positive results. However great the advantage, the public must support it by a big margin, or it will fail like Prohibition.

The likelihood of getting such public support is nil. So I have proposed the Adult Pleasure License (APL), where adults can do whatever they please, as long as it does not damage themselves and others. Prostitution and gambling are included. The Draconian measures can apply to those supplying customers who have lost their APL's.

I cannot reply to your argument about hard drugs. I have personally experienced the effects of opiates and amphetamines. I understood the attraction, but had zero desire to abandon everything else and dedicate my life to their full time use. Heavy users include those who use them to self medicate, meaning, using them to achieve normalcy, not intoxication. I am not evading your question except to say, the analysis is complex, and not yet done well.

Real world experiment. In Vietnam, 40% of US soldiers used opiates, including heroin, with 15% addicted. Upon return, the number dropped to under 2%, the number of the general population. The people still taking it here were similar in personal and family history background to the non-vet addicts. There is that risk, where the removal of the threat of punishment causes an explosion of use, that is horrible in its effect on health and economy, including a 10 fold increase in addiction with open availability.

This is not to dismiss your argument by analogy about other addictive substances, but to take it quite seriously. One answer is to experiment in a small jurisdiction (results of decriminalizing heroin in Switzerland have been very negative in consequences). Then repeat it again in a representative state, such as Ohio, before going national. We should study the outcomes of marijuana legality in Colorado, Uruguay, and move slowly.

Do you agree that the repeal of a crime ends its existence, and those imprisoned for it should be immediately released? After repeal, they would be imprisoned falsely for no crime.

Posted by: Supremacy Claus | Dec 14, 2013 11:57:29 PM

beth --

De jure legalization is a political act (legislatures being political products), and it's simply impossible intelligently to discuss political acts without taking account of the other factors I mentioned, since they dramatically affect politics.

Posted by: Bill Otis | Dec 15, 2013 12:21:11 AM

SC. That question is difficult for me to answer for two reasons. First, although you are correct that I know something about both law and psychology that is not my academic field. My own professional interests and activities do not touch upon any aspect of criminal justice, not even tangentially or obliquely. The only time my attention even wanders to criminal justice issues is when reading this blog.

Second, in my view psychology in general has little to offer the law because the law is mostly a sociological and not a psychological reality. In the past I have stated my deep dislike of a decision like Atkins and expressed similar skepticism about the so-called psychological horrors of solitary confinement. In my view Atkins legal theory is a normative claim given a psychological gloss to make the medicine go down.

So if I had that one hour you mention it would be tell judges to be skeptical of claims that psychologists make. This is not because I think that psychology is bullshit but because psychology and the law do not interface well. The two professions think about the world in distinct ways and unless that truth is grasped fully in all its ramifications its it easy for a judge to be lead astray.

Posted by: Daniel | Dec 15, 2013 1:40:58 AM

Daniel: Psychology should become the basic science of the law. Don't both deal with changing behavior against one's will?

As med school requires taking college Chemistry, Biology, Organic chemistry, and Physics, law school should begin to require the taking of some pre-law courses.

These should include, Critical Thinking (to immunize the student against the coming indoctrination), psychology, statistics. What else would one include to cover the changing of human behavior?

Posted by: Supremacy Claus | Dec 15, 2013 4:40:24 AM

Daniel made an ezxcellent point in his comments on Atkins. The IQ test was developed for a purpose, educational guidance. Using it to measure culpability is to misuse it.

Posted by: Supremacy Claus | Dec 15, 2013 4:44:33 AM

SC writes, "Don't both deal with changing behavior against one's will?"

There are certainly off-shoots of psychology that deal with power relationships. However, those are only minor branches of the field. If you are interested in the psychology of sadism, for example, and how that applies to sentencing I haven't a clue.

Now that I think about it, perhaps psychology has more to say about sentencing than I may have thought. I'd never thought about the possibility of a judge or a prosecutor being a sadist. As I say, it's not the type of question that I deal with in my own professional life; I know practically nothing about the psychology of BDSM. Might there be insights from the study of BDSM that might apply to sentencing? Maybe so. But since it is not something I study it is not something I am competent to talk about to a panel of judges.

Posted by: Daniel | Dec 15, 2013 3:36:45 PM

Daniel: Not thinking of the edge, like sadism but the mainstream of psychology.

From cognitive behavior therapy for anxiety to go toward a feared situation, to industrial psychology to become more productive, to child discipline to reduce wild behavior, psychology seeks to change people. Change is very difficult, takes a lot of practice and repetition.

There is a field that studies punishment, its frequency, its timing, its amount, its results. Operant conditioning, negative reinforcement, do lawyers know anything about these? Punishment is their sole tool, yet judges know precious little about it.

When I have proposed that my psychology friends should take over the criminal law, it was unanimous. Psychologists would be far softer on crime than lawyers, and all opposed the idea. No exception so far.

Posted by: Supremacy Claus | Dec 15, 2013 6:53:49 PM

What you present is a misunderstanding of behavioral psychology, something I would expect out of Psychology Today. Operant conditioning is by definition not the manipulation of a person "against one's will." Indeed, such an idea would by definition violate the APA Code of Ethics:

http://www.apa.org/ethics/code/index.aspx?item=3

I do now know who these "psychology friends" of yours may be but they do not sound like professional psychologists.

Posted by: Daniel | Dec 15, 2013 8:19:20 PM

Daniel. Giving a kid a time out from positive reinforcement, wearing a helmet that gives a mild shock for any head banging, return of a video game for completing homework without a hassle for one week, a spanking for touching a hot stove. Are those examples of operant conditioning? Are they with consent? Is consent even advisable?

Take another example. Written consent is given. The treatment for an elevator phobia is to eventually ride an elevator for 90 minutes, after which one will be free to choose to or not, rather than be forced to climb 10 flights to avoid one. With the psychologist saying to the patient, you cannot run away if you want to get better, and bullying the patient into one more ride on the elevator. Is that with real consent?

My psychology friends have PhD's, some are academics, most are real world people, some working in prisons. However uneducated the lawyer might be about punishment, psychologists would be far more dangerous to the public in coddling criminals. Unanimous consensus. The professional association, the APA, is far to the left of the left wing ABA, a Chicago based organization run by Ivy indoctrinated America haters.

Posted by: Supremacy Claus | Dec 16, 2013 7:55:26 AM

Bill Otis: Although your statistical calculations about personal use smoking of marijuana, showing it to be "de facto" legal, may be correct, they omit the fact that keeping marijuana smoking "de jure" illegal costs American taxpayers about $13 billion per year, including the cost of prosecuting and incarcerating marijuana crimes. We could use that money in many other places, including education, bridge replacement and reducing the amounts of unfunded public pension obligations.

Posted by: Jim Gormley | Dec 17, 2013 12:26:07 PM

Jim Gormley --

Three points.

First, I see that you do not attempt to refute my conclusion, reached with your own numbers, that simple pot smoking is de facto legal in this country. The guy sitting at home puffing his joint is safe and we all know it.

Second, there is very, very little support to decriminalize trafficking in pot. It has not been done in a single state, including Colorado and Washington. So de jure legalization of the kind that would save any significant percentage of the money you mention is not going to happen.

Third, those best entitled to make the decision about whether drug enforcement costs too much are, of course, those who pay the bill -- the taxpayers (not relatively miniscule advocacy groups). In that regard, it's also telling that you do not dispute my observation that the CSA has stood untouched for 40 years. If there were not very significant taxpayer support for it, that could not have happened.

Posted by: Bill Otis | Dec 18, 2013 12:33:27 PM

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