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January 7, 2013

California medical marijuana provider gets 10-year mandatory-minimum federal prison term

As reported in this local story, headlined "Medical marijuana: Aaron Sandusky sentenced to 10 years in federal prison," a high-profile case from federal court in California has resulted in a significant prison term today as a result of federal mandatory minimum sentencing laws.  Here are the basics:

Aaron Sandusky has been sentenced to 10 years in federal prison.  The former G3 Holistic Inc. medical marijuana dispensary president was sentenced today in U.S. District Court in Los Angeles for operating medical marijuana dispensaries in Upland, Colton and Moreno Valley.

"In this case, as the defendant was warned, the court's hands are tied," U.S. District Judge Percy Anderson said. "Whether you agree with the defendant's position or not."

Sandusky was found guilty in October of conspiracy to manufacture marijuana plants, to possess with intent to distribute marijuana plants, and to maintain a drug-involved premises; and one count of possession with intent to distribute marijuana plants, according to the U.S. Department of Justice.... 

"I want to apologize to those with me and their families who have been victimized by the federal government who has not recognized the voters of this state," Sandusky said in court.

State voters approved Proposition 215 in 1996, allowing medical marijuana in the state, while state Senate Bill 420, which details the amount of marijuana a person can possess for medical purposes, prevents cities and counties from banning marijuana dispensaries. But federal law says marijuana -- medical or otherwise -- is illegal. "I want to apologize to the families who are suffering and who have to go through this," Sandusky said.  "There are no winners here.  Not the state, not the federal government, not the patients who need medical marijuana."...

Sandusky turns 43 on Tuesday.  "It's not going to be a real happy birthday," G3 Holistic patient Christopher Kenner said.  "I hate to think this is the last time I'll see him."

Federal authorities in June arrested Sandusky and additional operators of the Inland Empire chain of marijuana stores and others associated with a warehouse, where marijuana was cultivated for the stores, on federal drug trafficking charges.  A six-count indictment returned by a federal grand jury charged three owners and operators of G3 Holistic stores. The indictment also charged three people who allegedly worked at a large grow operation in an Ontario warehouse that supplied marijuana to the three G3 stores.

I presume that Aaron Sandusky has preserved all of his potential appellate issues concerning his trial and sentencing and that he will pursue an appeal in the Ninth Circuit. Consequently, I doubt today's federal sentencing is the last chapter in his federal prosecution story.

January 7, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

SCOTUS cert grant and argument in cases (only?) hard-core sentencing fans should love

After its usual lengthy holiday recess, the US Supreme Court is back in action this week with a full slate of oral arguments and with plans to issue opinions in cases argued earlier this Term on both Tuesday and Wednesday.  And, as well covered here at SCOTUSblog, the Justices got all the new year action off to a running start with a trio of cert grants which included a plea practices case:

The Supreme Court agreed on Friday to rule on the rights of non-Indian couples to adopt an Indian child over the objection of a parent who is a tribal member.   That was one of three newly granted cases. The others deal with the remedy if a federal judge has some role in plea bargaining discussions, and a dispute among states over sharing the waters of a river that flows between them....

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal.  The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out.   The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.

If the issue that the Justices have now taken up in Davila is not intricate enough to scratch the procedural itch of hard-core sentencing fans, today's first scheduled SCOTUS oral argument should provide the perfect balm. Dan Richman provides at SCOTUSblog a great preview of the case in this post with the metaphysical title "When is a burglary a 'burglary'?". Here is how the post starts:

Because its application brings some of the federal system’s harshest mandatory penalties, and requires federal courts to categorize a diverse range of prior state convictions (most of which arose out of guilty pleas on undeveloped records), the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), has provided the Court with considerable business (and a fair amount of exasperation).  Descamps v. United States, 11-9540, set for argument on Monday, January 7, presents the Court with yet another categorization exercise that highlights the tension between such exercises and the Court’s developing constitutional doctrine about when judges can find facts in criminal proceedings.

These paragraphs from Dan's terrific preview spotlights why anyone who enjoys (or hates) visiting Apprendi-land should keep an eye on Descamps:

While the issue is pitched as one of statutory interpretation, substantial constitutional concerns lurk just beneath the surface.   As the Court explained in Cunningham v. California, under the Apprendi line of cases, the Sixth Amendment right to jury trial prohibits “a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.”  The doctrine’s focus on statutory maximums (which are rarely imposed), but not mandatory minimums (which always are) is an artifact of a line of cases that, on January 14, 2013, will, once again, be up for reconsideration when the Court hears argument in Alleyne v. United States.  But the rule’s carve-out reflects the continued vitality of Almendarez-Torres v. United States, which held that fact-finding as to the existence of prior convictions can be done by judges, not juries, even when such findings can increase a defendant’s statutory maximum.  Because this carve-out is a glaring exception from the constitutional rule, the Court has patrolled it carefully, in cases like Shepard v. United States, which limited the universe of materials a sentencing court can consult to determine what the jury in the prior case was actually required to find, or what the defendant necessarily admitted....

Although the Court specifically refused to grant that part of Descamps’s petition asking for Almendarez-Torres to be overruled, it will be interesting to see whether hostility to that case drives oral argument.  By Justice Thomas’s tally in Shepard v. United States, “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.”  So look for the Justices to limit the Almendarez-Torres carve-out by making inquiries into the nature of prior offenses as mechanistic as possible.  Given the warnings by lower courts of the practical and constitutional difficulties raised by the Ninth Circuit’s outlier approach, we should expect the government to face an uphill battle.  And, for all its technical aspects, it is one worth watching, as the heaviness with which the federal hand comes down on a lot of defendants depends on how their prior criminal convictions get categorized.

UPDATE The oral argument trascript in Descamps is now available at this link.  I will blog about anything interesting I find within it if/when I have time this evening (in other words, if the National Championship game gets boring).

January 7, 2013 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Have We Lost the War on Drugs?"

The title of this post is the headline of this lengthy essay which appeared in Saturday's Wall Street Journal and was authored by Gary Becker and Kevin Murphy. The subheading to the piece summarizes its themes: "After more than four decades of a failed experiment, the human cost has become too high. It is time to consider the decriminalization of drug use and the drug market." Here are just a few excerpts:

The direct monetary cost to American taxpayers of the war on drugs includes spending on police, the court personnel used to try drug users and traffickers, and the guards and other resources spent on imprisoning and punishing those convicted of drug offenses. Total current spending is estimated at over $40 billion a year.

These costs don't include many other harmful effects of the war on drugs that are difficult to quantify. For example, over the past 40 years the fraction of students who have dropped out of American high schools has remained large, at about 25%. Dropout rates are not high for middle-class white children, but they are very high for black and Hispanic children living in poor neighborhoods. Many factors explain the high dropout rates, especially bad schools and weak family support. But another important factor in inner-city neighborhoods is the temptation to drop out of school in order to profit from the drug trade.

The total number of persons incarcerated in state and federal prisons in the U.S. has grown from 330,000 in 1980 to about 1.6 million today. Much of the increase in this population is directly due to the war on drugs and the severe punishment for persons convicted of drug trafficking. About 50% of the inmates in federal prisons and 20% of those in state prisons have been convicted of either selling or using drugs. The many minor drug traffickers and drug users who spend time in jail find fewer opportunities for legal employment after they get out of prison, and they develop better skills at criminal activities....

The paradox of the war on drugs is that the harder governments push the fight, the higher drug prices become to compensate for the greater risks. That leads to larger profits for traffickers who avoid being punished. This is why larger drug gangs often benefit from a tougher war on drugs, especially if the war mainly targets small-fry dealers and not the major drug gangs. Moreover, to the extent that a more aggressive war on drugs leads dealers to respond with higher levels of violence and corruption, an increase in enforcement can exacerbate the costs imposed on society....

Usually overlooked in discussions of the effects of the war on drugs is that the illegality of drugs stunts the development of ways to help drug addicts, such as the drug equivalent of nicotine patches. Thus, though the war on drugs may well have induced lower drug use through higher prices, it has likely also increased the rate of addiction. The illegality of drugs makes it harder for addicts to get help in breaking their addictions. It leads them to associate more with other addicts and less with people who might help them quit.

Most parents who support the war on drugs are mainly concerned about their children becoming addicted to drugs rather than simply becoming occasional or modest drug users. Yet the war on drugs may increase addiction rates, and it may even increase the total number of addicts....

The decriminalization of both drug use and the drug market won't be attained easily, as there is powerful opposition to each of them. The disastrous effects of the American war on drugs are becoming more apparent, however, not only in the U.S. but beyond its borders. Former Mexican President Felipe Calderon has suggested "market solutions" as one alternative to the problem. Perhaps the combined efforts of leaders in different countries can succeed in making a big enough push toward finally ending this long, enormously destructive policy experiment.

January 7, 2013 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (19) | TrackBack

New York Times editorial assails Prez Obama's considerable clemency failings

The New York Times on Sunday published this editorial, headlined "The Quality of Mercy, Strained," which justifiably criticized President Obama for his dismal record on clemency. Regular reader have often heard such complaints from me, but this Times editorial effectively laments the current state of affairs after 2012 came and went without any clemency activity. And the piece makes the sound recommendation that Prez Obama take the clemency screening process out of the Department of Justice. I am pleased to reprint the full editorial here, in part because I agree with just about every word of it:

Barack Obama has rarely exercised presidential clemency to grant pardons and restore the civil rights of convicted criminals, a power that Abraham Lincoln, Franklin D. Roosevelt and other presidents used with dedication to correct injustices in the legal system.

Mr. Obama has pardoned only 22 people, fewer than any president since the modern era of pardons began in 1900. He has granted a pardon for 1 out of every 50 applicants, compared with 1 out of 33 for George W. Bush, 1 of 8 for Bill Clinton and 1 of 3 for Ronald Reagan.

In part, this has been a reaction to Presidents Clinton and Bush, both of whom compromised the pardon power with cronyism.  But the basic problem may be that Mr. Obama allowed himself to be crippled by the pardon process itself.  That process is managed by the Justice Department, which receives applications for clemency and makes recommendations to the White House.

Presumably, the president is willing to use acts of clemency to right the wrongs of the sentencing and judicial systems.  Yet the same cannot be said of the Justice Department, which has a prosecutorial mind-set.  It has undermined the process with huge backlogs and delays, and sometimes views pardons as an affront to federal efforts to fight crime.

Over the years, too, the process appears to have been tainted by racial bias.  As ProPublica documented in an analysis of Bush administration pardons, whites benefited from pardons four times as often as members of minority groups, even though blacks alone made up 38 percent of the federal prison population.  That report prompted a continuing Justice Department review by its Bureau of Justice Statistics.

In addition, the department’s pardon office is run by a Bush-appointed lawyer, Ronald L. Rodgers, whose professional conduct has been excoriated by the Justice Department’s own inspector general and referred to the deputy attorney general for possible administrative action.  In 2008, in transmitting a proposed pardon to the White House, Mr. Rodgers misrepresented the views of both the United States attorney who made the recommendation and the judge who seconded it.  The prisoner was denied a pardon.

One simple and immediate way for the president to reinvigorate the pardons process is to choose a person of stature and energy — say, a federal judge — to steward his administration’s pardon duties.  At the same time, he can end the department’s conflict of interest by replacing the pardons office with a new bipartisan commission under the White House’s aegis, giving it ample resources and real independence.

There is much good to be done, for the sake of justice as well as mercy.  Many federal inmates are serving egregiously long prison terms under mandatory minimum sentencing schemes.  Mr. Obama could use the pardon power to grant clemency to some long-term prisoners, until Congress reforms those laws.  He could also use that power to spare some federal offenders who have completed their prison terms from the legal restrictions that have kept them from getting jobs, places to live, business licenses and the chance to vote.

And he could address the unfortunate consequences of the nation’s unfair drug sentencing laws.  As of November 2011, there were at least 5,000 federal prisoners serving sentences for crack cocaine who deserved consideration for reduced sentences after a major reform of federal drug laws in 2010.  Those prisoners were sentenced when the penalty for crimes involving crack was far more severe than for crimes involving powder cocaine; in 2010, Congress reduced that difference, but the older sentences remained unchanged.

In 2003, Justice Anthony Kennedy observed that the pardon power had been “drained of its moral force.”  The Constitution grants the president alone the power to grant “pardons for offenses against the United States.”  It is time for Mr. Obama to vigorously exercise this august and singular responsibility.

Some recent and a few older posts concerning federal clemency practices:

January 7, 2013 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

January 6, 2013

Notable new talk of death penalty repeal efforts in New Hampshire

This local article, headlined "Republican joins new bid to repeal death penalty," reports on renewed discussions in New Hampshire concerning possible abolition of capital punishment in the state.  Here are the details:

State Rep. Renny Cushing is back in the Legislature, after being ousted along with many other Democrats in 2010, and the co-sponsor of his signature legislation on death penalty repeal, Stephen Vaillancourt, R-Manchester, expects to have a better chance than ever of passing the bill.

The difference this time is that newly inaugurated Gov. Maggie Hassan has stated she opposes the death penalty. A previous bill authored by Cushing in 2009 that passed the House died in the Senate after Gov. John Lynch threatened to veto it. And before Lynch there was Gov. Jeanne Shaheen, who vetoed a death penalty repeal that passed both chambers in 2000. Vaillancourt said Shaheen was "about the only Democrat in the state who opposed the repeal, but the only one who matters."...

Vaillancourt said he thinks Democrats are two or three times as likely as Republicans to favor death penalty repeal, so the 2012 surge of Democrats means "there's more of a chance than in the past." "I think we'll pass it in the House this year," said Vaillancourt, noting, "I don't have a count on the Senate."

State Sen. Nancy Stiles, R-Hampton, who Vaillancourt suggested might consider supporting the bill, said she's heard Cushing's "passionate testimony," but it hasn't changed her mind. She said she is unsure whether her fellow Republican senators would support the bill....

Cushing persuaded the majority of the House in the spring of 2009 after relating a personal story of his father's murder in 1988 by a neighbor who was a town police officer. "There was a knock on the front door ... my dad got up to open it and two shotgun blasts rang out, turned his chest into hamburger and he died in front of my mother in the home they lived in for 35 years and raised seven children," he testified.

And while his family wanted justice, Cushing testified that killing the man who killed his dad wasn't the answer. "The death penalty would not have brought my father back, it would only further victimize another family," he said. "If we make those who kill make us into killers, then evil triumphs. And we all lose."

Cushing's opposition to the death penalty, as the son of a victim of murder, flies in the face of what many might believe his stance would be. In addressing the issue, he has said he was brought up with a religious background and strong morality, and always opposed the death penalty. That opposition did not waver after his father's murder, he said. "If I changed my opinion it would have given my father's murderer more power," Cushing testified. "Not only would my father be taken from me but so would my values."

January 6, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (23) | TrackBack