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November 30, 2013

Years after Graham and Miller, Florida still working on its legislative response

As reported in this local article, Florida is continuing to struggle with how it wants to respond legislatively to the Supreme Court's determination that the state cannot be so quick to give so many juvenile offenders life without parole. Here are the details:

After a stinging defeat last year on the floor of the Senate, Rob Bradley, a Fleming Island Republican, has again filed legislation to align Florida’s juvenile-sentencing laws with recent United States Supreme Court rulings.

In 2010, the Supreme Court said it’s unconstitutional to sentence a juvenile to life in prison without the possibility of parole, though it allowed exceptions for juveniles convicted of murder.  Ever since, lawmakers have failed to pass legislation changing Florida’s juvenile sentencing laws to comply with those opinions. There are 265 inmates in custody of the Department of Corrections that were given life sentences as juveniles.

Additionally, without a tweak to state law, courts across the state have been left to interpret the Supreme Court’s decisions differently. “We owe it to our courts to provide guidance,” Bradley said. “It’s the Legislature’s job.”

During the 2013 legislative session, Bradley, a private attorney, ushered a proposed legislative fix through three committee stops, but halted his own bill on the Senate floor after opponents tacked on an amendment he opposed.  Bradley’s bill would have required a judge to consider factors like background and ability for rehabilitation during a mandatory hearing before sentencing a juvenile convicted of murder to life in prison.... Bradley’s bill also capped at 50 years the sentence a judge could give a juvenile who did not commit murder.

The amendment, offered by state Sen. Rene Garcia, R-Hialeah, would have allowed a parole hearing every 25 years for juveniles given life sentences for non-fatal crimes and for those who committed murder.  “Why not give that judge the ability to review a case after 25 years?” Garcia asked during April floor debate.

This year, Bradley’s legislation offers parole hearings after 25 years for juveniles convicted of non-fatal crimes, and caps sentences for those offenders at 35 years.  It does not offer hearings for juveniles convicted of homicide.  “The bill I filed still does not offer hearings to murderers,” Bradley said.

November 30, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

November 29, 2013

Louisiana Supreme Court at crosshairs of strong gun rights and tough drug laws

Cross-hairAs reported in this effective local article, headlined "Court considering second major gun law: La. drug-gun statute latest to face review," the top court in the Pelican State has a lot of interesting legal issues to sort out in the wake of state voters having last year approved by a gun-rights constitutional amendment backed by the National Rifle Association.  Here are the particulars:

Amid the growing confusion over whether Louisiana’s litany of gun crimes violates its residents’ turbocharged right to bear arms, the state Supreme Court has decided it will try to settle one of the most consequential questions: Does it remain constitutional to charge a person with a high-grade felony for having a gun at the same time as illegal drugs, no matter what kind of drugs or how much?

Rico Webb, a 22-year-old caught in a car with one marijuana cigar and a gun, points to a state constitutional amendment passed last year, applauded by conservatives and the National Rifle Association, that for the first time in American history declared gun ownership a fundamental right in Louisiana, subject to the same level of judicial scrutiny as free speech and voter equality.

The amendment provoked an avalanche of legal challenges to the state’s major gun-crime laws. At least three judges have declared various criminal statutes unconstitutional. The Louisiana Supreme Court is tasked with sorting out the mess.

The high court already is considering the statute that forbids certain felons from possessing firearms. It heard oral arguments last month, and its decision is pending.  In the meantime, the court agreed on Friday to take up Webb’s challenge to the law that punishes the possession of guns and drugs with five to 10 years in prison without the possibility of parole....

The constitutional amendment sailed through the Legislature last year and received overwhelming support from voters at the ballot box. Its proponents, both inside and outside the Legislature, defended the measure as a guarantee of freedom if federal gun protections were to somehow fall.

But critics described it as an unnecessary law that solved no problem.  Louisiana already had among the most liberal gun laws in the nation. All the amendment has accomplished, they say, is widespread constitutional chaos that could endanger public safety and waste hundreds of courthouse hours on the taxpayers’ dime.

The measure was pitched by conservative legislators as a state equivalent to the Second Amendment.  But in practice, it goes far past the protections offered by the U.S. Constitution.  The amendment erased language in the law that allowed the Legislature to prohibit carrying a concealed weapon and specified that, for the first time anywhere in the nation, gun laws would be subject to a “strict scrutiny” test, the highest level of judicial review.

“What the Legislature did is it took discretion away from itself,” said Raymond Diamond, a LSU law professor and Second Amendment scholar.  “This pro-gun Legislature voted to bind itself, and future Legislatures that might not be so pro-gun, from undertaking gun control. It has similarly binded local communities in ways that right now we really don’t understand.”  He has described the amendment as “a can of worms.”

It pushed the Louisiana Supreme Court to become the first in America to analyze criminal gun statutes using a strict scrutiny test.  That test presumes that every person has the right to be armed. Any law that seeks to infringe that right must pass a grueling legal test that kills more than two-third of the laws that come up against it.  The state must show that the law serves a compelling government interest, and that it is so narrowly defined that there is no less restrictive way of achieving that interest.

The arguments against the current statutes are similar, in that they equally dole out “heavy-handed penalties” to vast groups of people.  The drug statute treats people caught with small amounts of marijuana the same as those with large amounts of more serious drugs.  The felon-with-a-gun statute equates burglars with murderers. It includes a list of 150 felony offenses, characterized as drug or violence crimes, and says that anyone convicted of any of them is barred from possessing a firearm for 10 years after being released from prison.

The state supports that law by arguing that those with a demonstrated capacity to break the law are more dangerous when armed. Its position on the drugs-and-gun statute is the same: Drugs beget violence and guns make volatile situations deadly.

But Webb’s attorney, New Orleans public defender Colin Reingold, argues that the state cannot prove, under a strict-scrutiny test, that a single marijuana blunt makes him more dangerous when armed than anyone else, particularly since the possession of alcohol and guns is not equally restricted.  “The true danger of a firearm comes not from the manner in which its owner keeps or bears it, but rather from how the citizen uses the weapon,” Reingold wrote in his appeal to the Supreme Court.

Webb, who has no criminal record, was arrested on Sept. 10, 2012, when police pulled over his girlfriend for having a broken taillight.  He confessed to police that he had the blunt in his backpack and said the gun on the floorboard was his, too.  The gun was legal and the marijuana alone would have amounted to a misdemeanor, prosecuted in Municipal Court and typically punished with a fine and probation.  But combined, the gun and pot became a felony with a minimum sentence of five years and a maximum of 10 years, without the possibility of parole.

Webb appealed his charge to the Louisiana Supreme Court, which announced on Friday it would hear the case.  Over the years, the courts will have to sort out which of the 80 other gun crimes on Louisiana law books remain constitutional under the new amendment.

The state has become an experiment. “This is an exciting time because there is some risk that some of the laws will be declared unconstitutional,” Diamond said.  “Everybody’s very interested to see what the court’s going to do with it.”

Various prior Second Amendment and gun policy posts:

November 29, 2013 in Drug Offense Sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

"Abstract Risk and the Politics of the Criminal Law"

The title of this post is the title of this intriguing looking new paper by Brenner Fissell now available via SSRN.  Here is the abstract:

Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk.  Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption.  The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk.  What these defenses implicitly assume, though, is that the entity the individual must defer to — the legislature — is itself superior at risk assessment.

This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law.  Many extraneous considerations often enter, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, ought not simply assume that the legislature is epistemically superior to the individual, and bear a greater justificatory burden than they have satisfied thus far.

November 29, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

November 28, 2013

What SCOTUS sentencing cases are you least thankful for?

A couple of years ago, I asked on Turkey Day in this post "What SCOTUS sentencing cases are you thankful for?". For lack of a better idea for a Thanksgiving post, I though it might be fun (or informative or interesting or a way to keep busy during football blowouts and before heading out shopping) to ask now what SCOTUS sentencing cases are you least thankful for.

Of course, I tend to be thankful for all of SCOTUS's sentencing decisions, as they have given me lots to write about in this space and elsewhere for nearly two decades now. But there is at least one major Eighth Amendment ruling that has always bothered me throughout the years, Harmelin v. Michigan, 501 U.S. 957 (1991), which upheld against an Eighth Amendment challenge Michigan's imposition of a mandatory life without the possibility of parole sentence for just the possession of 672 grams of cocaine. I believe that ruling, which reflected sentiments prevailing at the height of the modern "war on drugs," has long thwarted reasonable development of Eighth Amendment jurisprudence.

November 28, 2013 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

November 27, 2013

"20% Of Obama’s Pardons Have Gone To Turkeys"

Presidential-pardonsThe title of this post is the fitting headline devised by Andrew Sullivan for this post from The Dish. The post links to this longer lament of the entire turkey pardon ritual by Brad Plummer, which winds down this way:

It's a mockery of the presidential pardon, which is an all-too neglected issue. Maybe this isn't surprising, since the turkey pardon was basically invented as a way of mocking presidential pardons. Still, it's worth mentioning.

After tomorrow, Obama will have "pardoned" 10 turkeys in all (turkeys that, as best we can tell, haven't actually committed any crimes). By contrast, he will have only pardoned or commuted the sentences of 40 actual living human beings.

The latter is a record low for modern-day presidents.  At the same point in his presidency, Ronald Reagan had pardoned 313 people.  Harry Truman had pardoned 1,537 people.

Last year, Sam Morrison, an official who spent 13 years in the Justice Department's Office of the Pardon Attorney before retiring in 2010, described the prevailing attitude toward pardons this way: "They tend to view any grant of clemency not as a good thing, as a criminal justice success story, but almost as a defeat — that you're taking away something from what some good prosecutor achieved." (The Justice Department disputed this characterization.)

Over at National Journal, Ron Fournier pointed out that, at the bare minimum, Obama could grant clemency to all the people still serving extra time in prison under the old crack-sentencing guidelines — guidelines that Obama himself opposed as excessive and which Congress reduced for all new prisoners in 2010.  So far, however, there's no sign that the White House will do this.

Of course, comparing Prez Obama's pitiful clemency record to the records of prior presidents like Ronald Reagan or Harry Truman is quite unfair — to Reagan and Truman. The federal criminal justice system and the federal prison population (not to mention the negative consequences of a federal record) were all much, much smaller when Reagan and Truman were President, and thus the number of federal offenders and prisoners formally seeking clemency was much lower. Indeed, these official clemency statistics reveal that Prez Obama gets about 10 times as many formal commutation requests than Prez Reagan got each year (which, is not so surprising given that the federal prison population is nearly 10 times larger now than it was when Reagan first became President).

Indeed, if we focus on only commutations, President Obama's record looks even more revolting.  As Jacob Sullum notes here at Forbes, Obama has only commuted a single federal prison sentence.  Thus, as the Forbes headline states, "Judging From His Clemency Record, Obama Likes Turkeys 10 Times As Much As People."

November 27, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Should reform advocates welcome latest DEA raids of hinky medical marijuana facilities in Colorado?

20131125__hector-diaz-comlaint~p1The question in the title of this post is prompted by this recent report from The Denver Post, headlined "Feds arrest one, seize guns and ammo in Colorado marijuana raids" about recent federal raids of medical marijuana facilities in a state now only a month away from having recreational marijuana stores.  Here are the details of the latest federal intervention:

When federal agents swooped into a swanky Cherry Hills Village home last week as part of widespread raids tied to medical-marijuana businesses, they found a person inside holding a loaded gun, according to a court document unsealed Monday. By the time they were done searching the $1.3 million home Thursday, agents had collected five assault-style rifles, five handguns, a shotgun and a "large cache of ammunition," according to the document. It did not identify the person with the gun.

One person was detained and later arrested on suspicion of weapons violations, authorities announced Monday. As part of their investigation, agents had obtained an e-mailed photograph that appears to show that man, 49-year-old Hector Diaz, holding two semi-automatic rifles while wearing a Drug Enforcement Administration ball cap.

The details on the raids — disclosed for the first time Monday — come from an affidavit in the criminal case against Diaz and provide new context for the largest federal operation against medical-marijuana businesses ever in Colorado. Agents executed "approximately 15" search warrants during the raids, the affidavit states.  Sources have told The Denver Post that the raids — which a search warrant shows targeted 10 men — were part of an investigation into a single enterprise that detectives believe may have ties to Colombian drug cartels.

Diaz, a Colombian national, was charged with a single count of possessing a firearm after having been admitted to the United States under a non-immigrant visa.  He could face up to 10 years in prison if convicted. Appearing in court Monday afternoon, Diaz was advised of the charge against him and ordered held until at least Wednesday, when a hearing will determine whether he should be released and at which time more information about the raids will likely be disclosed.

The raids focused especially on stores, cultivation warehouses and individuals connected to the VIP Cannabis dispensary in Denver. On Sunday, an attorney for one of the owners of the dispensary sent a letter to Colorado U.S. Attorney John Walsh proclaiming his client's innocence. Attorney Sean McAllister wrote that his client, Gerardo Uribe, did nothing wrong under state law and "will be vindicated by a full review of this matter."...

The raids are not the first time, however, the people associated with VIP Cannabis have been accused publicly of marijuana misdeeds. A lawsuit filed last month in Denver claims Gerardo Uribe and two other men named in the search warrant, Luis Uribe and Felix Perez, have not made good on hundreds of thousands of dollars owed to three men for the purchases of a dispensary on East Colfax Avenue and a grow warehouse on Elizabeth Street. The suit also alleges that the Uribes and Perez were suspected of hiding profits and product from their marijuana businesses and selling marijuana out of state.

"Marijuana product is unaccounted for, proceeds from the dispensary are unaccounted for and Plaintiffs assume that the Defendants have stolen product and money from them," the lawsuit states. Another section of the suit alleges: "Plaintiffs believe that the Defendants may be transacting business with people in other states and do not want to reveal what the businesses are really making or who they are conducting business with."...

Other lawsuits also provide a glimpse into the high-dollar business of marijuana in which the raid targets were involved. A lawsuit filed this year in Jefferson County accuses businesses controlled by Luis Uribe and another person named as a target in the search warrant, Carlos Solano, of not paying up on the purchase of a cultivation facility. In a settlement reached in September, Uribe and Solano agreed to pay $90,000 to the plaintiffs.

As the title of this post hints, I think advocates for legalizing and regulating marijuana ought generally be pleased when the feds go after the most shady operators of marijuana facilities. I suspect businesses that follow the law in any industry can and do generally hope that those competitors cutting corners will get in trouble for regulatory failings. And, with respect to state-legalized marijuana industries, even advocate for a regulatory scheme instead of prohibition may still find it useful and beneficial for there to be the ever-present threat of the feds bringing a severe criminal justice hammer down on those businesses getting the most out of line.

Cross-posted at Marijuana Law, Policy and Reform

November 27, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

"Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing"

The title of this post is the title of this notable new paper by Samantha Buckingham now available via SSRN. Here is the abstract:

Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants.  Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources.  These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society.

Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices.  This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders.

The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes.  Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate.  This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts.  Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in.  A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.

November 27, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

November 26, 2013

Intermediate NJ appeals panel upholds broad restriction on released sex offender access to social media websites

As reported in this AP article, headlined "NJ panel: Sex offenders can be kept off Facebook," a New Jersey appeals panel handed down today a notable opinion upholding a notable restriction on computer use by released sex offenders. Here are the basics:

A New Jersey appeals court has ruled that paroled sex offenders can be barred from Facebook, LinkedIn and other online social networks.

Two offenders had gone to court to challenge that restriction, saying social networks are important ways to get news, information and find business opportunities.

However, a three-judge panel ruled Tuesday that the offenders can be kept off social network as a term of parole. The judges said they agree that the networks are an important facet of modern life, but said there is a good reason to keep convicted sex offenders off them. "The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior," Judge Jack Sabatino said in his opinion. He noted that the parolees can still get news and buy products online.

The ruling referenced in this article is partially available at this link, and here are excerpts from the start of the opinion:

Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as of fenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.

The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations....

For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

I expect the defendants here may be eager to appeal this matter to the NJ Supreme Court and maybe even the US Supreme Court, especially since it appears that the internet use restrictions upheld here are set to last a lifetime.  And though this case might not be the best vehicle, I suspect that SCOTUS will eventually have to consider what restrictions can be poperly place on internet access for released offenders.

November 26, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

Can Prez Obama be trusted to live up to clemency reform promises?

Perhaps the only thing I have grown to dislike about Thanksgiving in modern times is all the pomp and circumstance (and the lame-stream media's attention) given to the silly tradition of having the President pardon a turkey.  Regular readers kow that this silly tradition is distinctly galling of late given the Obama Administration's truly disgraceful record on granting clemency to real humans rather than tasty animals.  Fortunately, this new article at The National Journal is covering the real story with reference to the well-known case of (my former client) Weldon Angelos under the headline "Will Obama Pardon This Man (and Many Like Him) or Just a Turkey?: The White House is considering clemency reform, sources say, after compiling a historically unmerciful record." Here is how this piece starts:

President Obama on Wednesday will pardon a Thanksgiving turkey. Which makes this a good time to ask why a liberal constitutional lawyer who bemoans the bloated prison system and proclaims that "life is all about second chances" is -- on the matter of clemency -- one of the stingiest presidents in U.S. history? Put another way: If a turkey deserves a second chance, why not Weldon Angelos?

Angelos was sentenced in 2004 to 55 years' imprisonment for possessing a firearm in connection with selling small amounts of marijuana. He didn't brandish or use a weapon, nor did he hurt or threaten to injure anybody. And yet the father of young children and an aspiring music producer was given an effective life sentence because of a draconian federal law requiring mandatory minimum sentences.

Even the judge on his case, Paul G. Cassell, found the sentence "cruel and irrational." While urging Obama to reduce Angelos's punishment, the Republican-appointed judge wrote, "While I must impose the unjust sentence, our system of separated powers provides a means of redress."

More than almost any president, Obama has failed to exercise that "means of redress" inscribed in the Constitution, the presidential clemency. But that may be changing. The White House is considering a broad range of clemency reforms.

One reason I am among the majority of Americans who now, according to the latest polling, thinks is Obama is not honest or trustworthy is because we have been hearing from this White House vague talk about clemency reform for years now and yet have not seen one whit of action on this front despite mountains of evidence (and lots of talk from Attorney General Holder) that reform is badly needed and long overdue.

Long-time readers likely recall that I blogged and complained a lot about these issues during the first few years of the Obama Administration when I still believed that this President meant what he said and said what he meant. But in recent years I have concluded that this Prez is in this context happy and generally eager to talk the talk without ever walking the walk.

I certainly will continue to hold out hope that we may eventually see this White House develop "a broad range of clemency reforms," and I remain (naively?) optimistic that the Obama team will do at least a little something (at least for show) on this front come mid-November 2014 or 2016. But I have long been tired of the talk and too long been waiting for action to really from the current Administration, and I instead like spending my time imagining what a President Rand Paul might be willing and able to do with the historic constitutional power of clemency.

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

November 26, 2013 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

November 25, 2013

New report (by reform advocacy group) praises state regulation of medical marijuana in wake of DOJ enforcement memo

As reported in this press release,"[m]edical marijuana advocates Americans for Safe Access (ASA) issued a report today that analyzes the Obama Administration's latest enforcement guidelines for federal prosecutors in states that regulate medical marijuana distribution."  Here are basics concerning the 88-page report (which is available in full here):

The report, "Third Time the Charm? State Laws on Medical Cannabis Distribution and Department of Justice Guidance on Enforcement," shows that states have already enacted regulations that meet federal concerns, and some would have stronger regulations if it were not for federal threats that disrupted the legislative process.  The report concludes with recommendations for how federal and state legislators can protect patients and harmonize state and federal policies.

Medical marijuana patients greeted the Department of Justice (DOJ) memo issued August 31st by U.S. Deputy Attorney General James Cole with cautious optimism.  The memo is the third from the Obama Administration that attempts to rein in federal prosecutors in states that allow for regulated distribution of marijuana.  The first memo, issued in October 2009 by Cole's predecessor, then-Deputy Attorney General David Ogden, did not stop various federal prosecutors from attempting to thwart the implementation of several state medical marijuana laws.  A report issued by ASA earlier this year put the cost of federal interference with state medical marijuana programs at more than $300 million.

“We hope the latest federal policy on marijuana will compel the Obama Administration to make good on its promises to stop wasting taxpayer money on undermining duly enacted state laws,” said ASA Executive Director Steph Sherer. “With almost 40 percent of Americans living in states that permit medical marijuana, it's time for the federal government to resolve the conflict between its outdated policies and the growing number of compassionate state laws.”...

The ASA report recommends that state legislators use the 2013 Cole memo as a guide when developing production and distribution regulations, while avoiding unnecessarily restrictive policies that fail to meet the needs of patients.  The report also urges lawmakers to recognize that all three DOJ directives maintain that cultivation by individual patients is not a federal enforcement concern, giving the green light for state legislators to preserve or adopt patient cultivation rules.

The report also recommends that Congress make short and long-term policy changes to ensure respect for state laws and protection for patients and their providers. The report urges federal legislators to restrict how DOJ funds are spent on enforcement in medical marijuana states until the DOJ can determine what "metrics" to use in evaluating compliance with their enforcement priorities.  As a long-term solution, the report asks Congress to adopt HR 689, which would reclassify marijuana for medical use.

November 25, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

New Brennan Center report urges "Reforming Funding to Reduce Mass Incarceration"

REFORM_FUND_MASS_INCARC_v6_Page_01As reported in this press release, late last week The Brennan Center for Justice published a notable new report setting out a notable new proposal under the title "Reforming Funding to Reduce Mass Incarceration." Here are highlights via the press release:

The proposal, dubbed by the authors “Success-Oriented Funding,” would recast the federal government’s $352 million Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by changing the measures used to determine success of its grants. It reflects a broader proposed shift in criminal justice programs at all levels of government. The proposal could be implemented without legislation by the U.S. Department of Justice.

“Funding what works and demanding success is critical, especially given the stakes in criminal justice policy. This report marks an important step toward implementing this funding approach in Washington and beyond,” said Peter Orszag, former Director of the White House Office of Management and Budget, who wrote the proposal’s foreword.

The Center proposes major changes to the program’s “performance measures”, which are used to track a grant recipient’s use of the funds....

“What gets measured gets done,” said Inimai Chettiar, director of the Justice Program at the Brennan Center and one of the report’s authors. “Criminal justice funding should reflect what works. Too often, today, it is on autopilot. This proposal reflects an innovative new wave of law enforcement priorities that already have begun to transform policy. That is the way to keep streets safe, while reducing mass incarceration.”

Success-Oriented Funding would hold grant recipients accountable for what they do with the money they receive. By implementing direct links between funding and proven results, the government can ensure the criminal justice system is achieving goals while not increasing unintended social costs or widening the pipeline to prison.

The JAG program was launched nearly three decades ago at the height of the crime wave. As such, its performance measures center on questions about the quantity of arrests and prosecutions. Although funding levels are not based on rates of arrests and prosecutions, interviews with over 100 state and local officials and recipients found that many grant recipients interpreted the performance measure questions as indicating how they should focus their activity.

The Brennan Center’s new, more robust performance measures would better record how effective grant recipients are at reducing crime in their state or locality. For example, current volume-based performance measures record activity, such as total number of arrests, number of people charged with gun crimes, or number of cases prosecuted. The Brennan Center’s proposed new Success-Oriented performance measures record results, such as the increase or decrease in violent crime rate or what percentage of violent crime arrests resulted in convictions.

A Blue Ribbon Panel of criminal justice experts also provided guidance and comments on the measures, including leaders in law enforcement, prosecutors and public defenders, former government officials, and federal grant recipients. Participants included David LaBahn, president of the Association of Prosecuting Attorneys; John Firman, research director of the International Association of Chiefs of Police; and Jerry Madden, a senior fellow at Right on Crime....

In addition to implementing new metrics, the Brennan Center recommends the Justice Department require grant recipients to submit reports. By mandating that grant recipients answer the questions, the Justice Department can align state and local practices with modern criminal justice priorities of reducing both crime and mass incarceration. The reported data should then be publicly available for further analysis.

The full Brennan Center report can be accessed at this link.

November 25, 2013 in Data on sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

November 24, 2013

"'Cocaine congressman' received the right sentence"

The title of this post is the headline of this new commentary by Clarence Page appearing in the Chicago Tribune. Here are excerpts:

"Cocaine Congressman" Trey Radel, as headline writers have rebranded him, voted to allow states to drug test all food stamp recipients. Congress, it turns out, should have drug-tested Radel....

Radel became the first sitting congressman in 31 years, according to The Associated Press, to plead guilty to a misdemeanor drug-possession charge.

FBI and Drug Enforcement Administration agents swooped in to arrest him after he bought 3.5 grams of cocaine for $250 in a late October sting operation in Washington's fashionable DuPont Circle neighborhood. Charging documents described Radel as having a frequent-buyer reputation in the neighborhood. After Radel pleaded guilty in District of Columbia Superior Court, he was sentenced to a year of probation and will undergo substance abuse treatment in Florida.

House Republicans did not rush to escort Radel out the door, even though he reportedly waited three weeks before telling them about his bust. Speaker John Boehner said before Radel's sentencing that the matter should be left up to the courts, Radel, his family and his constituents.

Indeed, it would hardly be the first time that a politician continued to serve and potentially be re-elected after a misdemeanor conviction. Voters can be very forgiving of lawbreaking politicians.

"Today, I checked myself into a facility to seek treatment and counseling," Radel said in a statement last week. "It is my hope, through this process, I will come out a better man." I wish him luck. Unlike his more outraged critics, I don't think Radel should have been sent to jail. Quite the opposite, I think his case offers a good example of why a lot of nonviolent, first-arrest drug offenders shouldn't be in jail.

Contrast his case, for example, with another high-profile District of Columbia case, the arrest of then-Mayor Marion Barry for taking a hit of crack cocaine during an FBI hotel room sting in 1990. He was sentenced to six months in a federal prison. His sentence could have been worse if the video had not provided so much evidence to back the mayor's argument that he was a victim of FBI entrapment.

The fact that Barry is black and Radel is white doesn't mean that racism played a role in either case. But the differences in their sentences illustrate a persistent problem: Despite recent reforms, a racial disparity persists between the minimum sentences for crimes involving crack and powder cocaine. The Fair Sentencing Act that Congress passed in August of 2010 reduced the 100-to-1 disparity between crack and powder cocaine that was created during the anti-crack uproar of the 1980s. But it still remains way too huge at about 18-to-1. Fairness should never end at the color line.

Radel is fortunate to have been sentenced in D.C., where enlightened attitudes led to a special "drug court" in 1993 that is designed to funnel low-level addicts into rehab instead of long-term jail time. With prison costs skyrocketing — even after overall crime rates declined in the mid-1990s — even states with reputations for tough justice are turning to alternatives to prison for nonviolent drug offenders. Drug addiction should be handled as a disease, not a crime. Trey Radel knows.

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November 24, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (11) | TrackBack

Is there any obvious sentencing fallout after nuclear option used in Senator filibuster war?

Dr-strangelove-be-optimisticI am intrigued that a group of Senators finally triggered the (foolishly-named) nuclear option in an effort to preclude the persistent use of filibuster practices to delay and/or thwart some presidential nominees.  And though I know it is hard for folks to put aside short-term political realities that prompted these reforms, I am hopeful readers might here talk about whether they think this development could be good or bad (or perhaps just inconsequential) for the long-term development of sentencing jurisprudence.

This CNN article, which is headlined "5 ways life changes in the Senate after nuclear option on filibusters," predicts "more new judges" as one likely consequence, and that seems about right. Others are saying we should expect to see more ideological federal judges, too. Assuming this is all true, do folks think more new and more ideological federal judges will be good or bad for the future of sentencing jurisprudence?

I tend to be an optimist by nature, so I am inclined to assert that more new and more ideological federal judges could lead to more thoughtful skepticism about lots of sentencing jurisprudence. But maybe I am now just looking way too hard for a sentencing silver lining in the mushroom cloud that I suppose now is hanging over the Senate chamber after Harry Reid pushed his nuclear button.

November 24, 2013 in Who Sentences? | Permalink | Comments (17) | TrackBack