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March 3, 2014

Detailing the impact and import of Burrage on the federal drug war

The Supreme Court a few weeks ago in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected federal prosecutors' arguments to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant.  Now, via this notable ABC News report headlined "U.S. Drug Cases Getting Rehabbed After Supreme Court Decision," we learn about some of the early impact of this ruling:

A week before actor Philip Seymour Hoffman overdosed on a mix of heroin, cocaine and other drugs, the Supreme Court restrained what one top prosecutor called "the strongest tool" federal authorities have to go after dealers in such cases, and now some U.S. drug prosecutions are getting sent to rehab. "We may not be able to meet the standard of proof in those cases," the U.S. Attorney in Vermont, Tris Coffin, said of overdose cases involving a cocktail of drugs. "It will have some impact."

In fact, a federal judge in Kentucky has already vacated the most severe charge against 53-year-old Harold Salyers, a father who was certain to spend decades in prison after being convicted last year of selling heroin to a man who then died. In Alaska and Ohio, defense attorneys are separately hoping their clients can similarly benefit from the high court's recent decision.

On average, drug traffickers in federal cases are sentenced to less than seven years behind bars.  But "when death or serious bodily injury results," the dealer can face a mandatory minimum of 20 years and as long as life in prison, according to federal law. Federal authorities have long sought the stiffer charge when a dealer's drugs contributed in some way to an overdose.

In January, though, the Supreme Court ruled the dealer's drugs need to do more than just contribute, they need to be "the straw that broke the camel's back," as one Justice Department official put it. That's "problematic," especially in overdose cases where an accused dealer's drugs are not the only drugs involved, according to the official. Nearly half of all overdoses involve multiple drugs, federal statistics indicate. "Now we need to [prove] not that just drugs killed them, but which drugs killed them," said the Justice Department official, speaking on the condition of anonymity....

The Supreme Court decision in Burrage v. United States initially received scant news coverage and only moderate notice since actor Hoffman's overdose -- a case being handled by local authorities in New York that highlights some of the obstacles to bringing federal charges.  Still, top federal prosecutors said they don't believe the high court's decision is "a significant setback" or "a real game-changer for us."

Medical experts will just have to dig deeper to determine a drug's exact role in death, and federal prosecutors rarely seek the stiffer charge anyway, even when an overdose occurs, according to both Coffin and Harvey, the U.S. attorneys. "We're going to be fine" and will bring "most of the cases we want to bring," Harvey said.

But the Justice Department official, speaking on condition of anonymity, said finding medical experts who can determine a drug's exact role is not so easy and "is a big burden on the government." Plus, the official said, the Supreme Court decision could be "a blow" to investigative efforts. "The 20-year mandatory minimum has been tremendously efficient in scaring the dickens out of people so they cooperate up the chain," the official said. "It's been a really good negotiating tool."

There are so many interesting aspects to this Burrage follow-up story, and it highlights for me that it might be very interesting and very valuable for some researchers to assemble and analyze data on how the mandatory minimum sentencing provision at issue in Burrage has been applied in the years before this SCOTUS ruling and how it gets applied in the coming years.

But I especially like and find helpful the candid and astute quotes from the unnamed Justice Department official reprinted at the end of this excerpt. The quote so efficiently and effectively captures the real work and importance of all modern mandatory minimum sentencing terms in the federal system: they mostly exist to reduce "a big burden on the government" by providing a ready and "tremendously efficient" to scare "the dickens out of people so they cooperate up the chain" and thus serve as a "really good negotiating tool."

As I have said before and will say again, for those who favor a big federal criminal justice system having lots of power with limited burdens on a "tremendously efficient" means scare "the dickens out of people so they cooperate" with government officials, the current operating structure and modern application of federal mandatory minimums are still working pretty well despite the setback that Burrage may represent for one of these potent prosecutorial weapons in the drug war. But for those who are suspicious of a big federal criminal justice system having lots of power concentrated in executive branch official not subject to the rule of law or really any regulation or review of how its power gets used (persons that include Senator Rand Paul and yours truly), reform of all federal mandatory minimums seems to be essential to restore fully the vision of limited federal government power and individual rights that inform and infuse the Constitution and the Bill of Rights.

March 3, 2014 at 10:54 AM | Permalink

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Comments

Some problems from this false prosecution.

1) Home Depot sells the person a hook, rope, and a short ladder. Customer hangs self. Does Home Depot have any duty outside of duty to all other customers?

2) Say you believe in the atavistic, Medieva,lawyer theory, the chain of causation. The non-coerced, intentional act of ingestion of illegal drugs, breaks the chain of causation.

3) The ingestion is an illegal act. Do we want to reward it by assigning legal and tort liability to another?

Posted by: Supremacy Claus | Mar 3, 2014 11:38:49 AM

SC, I agree with the Supreme Court's ruling, but your argument doesn't make that much sense.

1. This argument would make sense if selling those items at Home Depot were illegal. I think the legislature is allowed to say "committing a felony is bad, causing a death while committing a felony is worse." It's the reason we have Felony-Homicide as a category.

2. This really doesn't make sense in context. It is the cause (or, rather, can be the cause), it doesn't break causation. Ingesting a different drug could break the causation, but I think we've moved beyond abstract 18th Century pontifications of cause in fact and can try and let science actually sort it out.

3. I don't think the dead person is being rewarded.

Posted by: Erik M | Mar 3, 2014 2:23:22 PM

"But for those who are suspicious of a big federal criminal justice system having lots of power concentrated in executive branch official not subject to the rule of law or really any regulation or review of how its power gets used..."

Vesting discretion in the executive branch is A PART OF, NOT A DEVIATION FROM, the rule of law. Officers of ALL THREE BRANCHES are vested with various kinds of discretion, each only indirectly subject to influence by the other branches. It is this formula, and not the Imperial Judiciary that has The Last Word on Everything, that the Framers established.

"...(persons that include Senator Rand Paul and yours truly), reform of all federal mandatory minimums..."

Why do you keep saying "reform" when what you mean is "abolish"?

"...seems to be essential to restore fully the vision of limited federal government power and individual rights that inform and infuse the Constitution and the Bill of Rights."

What is your source for that? The Supreme Court has never come close to saying that mandatory minimums are inconsistent with the individual rights secured by our founding documents. Indeed, it has not even said that very harsh MM's do such a thing (Harmelin, cf. Bordenkircher). Nor does the only bill that has even a slight chance of moving forward, the SSA -- which, I might add, keeps MM's for every crime for which they currently exist AND ADDS THREE MORE.

What the abolition of MM's would actually do would not be to add to individual freedom. It would simply shift government power from the elected branches to the unelected one.

This is an advance for democracy? For freedom?

My goodness!

Posted by: Bill Otis | Mar 3, 2014 2:46:43 PM

Anybody with experience in contemporary federal criminal proceedings knows where the power lies. It's not with the bench, and it's certainly not with the defense bar.

Posted by: Karen Fitchett | Mar 3, 2014 5:57:19 PM

Bill, I do not want the judicial branch to have the last word on Everything, but I do think the Constitution in form and function contemplated that the judicial branch would have the last word on sentencing power (subject to appellate review and clemency to check that power). SCOTUS has said MMs are unconstitutional for the death penalty for all defendants and for LWOP for juveniles. And Alleyne has now finally reversed McMillian and Harris concerning the required procedures for MMs. And I hope it is only a matter of time before Harmelin is reversed, too.

That said, my main point is not a constitutional one but one based on my view of sound policy. I think sound policy, at least for those who fear the exercise of big government and the tyranny of the majority, is for an unelected judicial branch to have the last word on sentencing power (subject to appellate review and clemency to check that power). You, in contrast, seem eager to make sure that in many (most? all?) cases, federal prosecutors get to have the last word on sentencing. And that is because, I surmise, you think crime is reduced and justice is well served when a favor a big federal criminal justice system gives prosecutors lots of power with limited burdens to serve as a "tremendously efficient" means to scare "the dickens out of people so they cooperate" with government officials.

Posted by: Doug B. | Mar 3, 2014 7:14:47 PM

Erik M: Some very good points. Sometimes I assume too much reader facility with the material, and leave out steps to a conclusion.

1) Felony murder requires foreseeability of harm and proximity in time and space. For example, the dealer administered a hot dose, with death soon thereafter, that is a felony murder, no intent, but foreseeability, and immediacy of harm. As to the legality and authorized nature of selling rope, what if the instrument were a stolen car, then crashed into a train? The physical possession of the instrument of death makes the drug user fully responsible. Possession means having dominion or full control over. At worst, there is a product liability angle, but possession by the victim precludes criminal charges.

2) There is no chain of causation in nature. There are factors clustering in space and time to make a catastrophe. Often a dozen, and the prevention of the most insignificant can prevent the entire catastrophe. So one may not even attribute any weights to these factors. No lawyer understands this absolute advancement in the study of adverse events. No lawyer has ever used it. So assume a chain of causation does exist, and is not a lawyer myth, invention, lie, etc. Is the ingestion a voluntary, intentional act by the victim? Does the dealer have any control over it? If not, the ingestion is an intervening act relieving the dealer of liability.

3) The estate of the victim is to get lawful retribution via the criminal prosecution, but it should not be rewarded, that way.

Posted by: Supremacy Claus | Mar 3, 2014 11:44:22 PM

Doug --

"Bill, I do not want the judicial branch to have the last word on Everything, but I do think the Constitution in form and function contemplated that the judicial branch would have the last word on sentencing power (subject to appellate review and clemency to check that power)."

So Congress cannot set sentencing ranges at all???

"SCOTUS has said MMs are unconstitutional for the death penalty for all defendants and for LWOP for juveniles."

This is the first time I have heard of Woodson and Miller being referred to as MM cases. Still, technically you are correct, so I will revise: The Supreme Court has never come close to saying that mandatory minimums for a stated term of years are inconsistent with the individual rights secured by our founding documents.

"And I hope it is only a matter of time before Harmelin is reversed, too."

I hope it's only a matter of time before Miranda is reversed, as it should have been in Dickerson, but that's not going to happen either.

"That said, my main point is not a constitutional one but one based on my view of sound policy. I think sound policy, at least for those who fear the exercise of big government and the tyranny of the majority, is for an unelected judicial branch to have the last word on sentencing power (subject to appellate review and clemency to check that power)."

Ah! Finally!! Better that we have the tyranny of the minority. Especially when the minority shows the outstanding "judgment" demonstrated by Jack Weinstein in the Corey Reingold child porn case. Mr. Tyranny-of-the-Minority went so far as to continue to hide the (adult) defendant's name, thus to facilitate his resuming his, uh, hobby.

Judge Weinstein is a case study as to why majority rule is to be preferred to minority frolics. Not that we should stop just with him. There's also Judge Camp, Judge Hastings, Judge Nixon.......

"You, in contrast, seem eager to make sure that in many (most? all?) cases, federal prosecutors get to have the last word on sentencing."

First, prosecutors sentence exactly nobody.

Second, the defendant's behavior sets the stage for what he gets charged with. If he doesn't want an MM charge, he has an easy out: Sell less heroin less often.

Third, the bill you so enthusiastically back, the SSA, does zip -- as in zilch, zero, nada -- to cut back on the prosecutor's discretion or make it more visible.

Fourth, the defendant has all manner of outs you decline to recognize, from the existing Safety Valve to executive clemency.

"And that is because, I surmise, you think crime is reduced and justice is well served when a favor a big federal criminal justice system gives prosecutors lots of power with limited burdens..."

Actually, it's because I favor what has helped to massively reduce crime (tougher sentencing) and oppose what helped to increase it (complacency, limitless and unprincipled judicial power over sentencing, and feckless faith in Lindsay Lohan...uh, I mean the power of rehabilitation).

"...to serve as a 'tremendously efficient' means to scare 'the dickens out of people so they cooperate' with government officials."

I don't know what's wrong with a defendant's being scared. I'd be scared too if I got caught committing a federal felony. (I'd also be ashamed, but I have learned not to expect that from those who always find someone else to blame).

Every and any defendant who wants a trial gets it, and if they don't want to cooperate, then, as I have said a hundred times, it's fine be me. I didn't make their initial bad choices for them, and I don't make that one either.

Posted by: Bill Otis | Mar 4, 2014 1:28:06 AM

Bill: Your format is from here. OK in free expression in a comment, not OK, unconstitutional in any legal document.

http://www.newadvent.org/summa/2095.htm

That being said, I will use the same format.

"I don't know what's wrong with a defendant's being scared. I'd be scared too if I got caught committing a federal felony. (I'd also be ashamed, but I have learned not to expect that from those who always find someone else to blame)."

What if you are factually innocent?

What if your assets have been seized, and you cannot afford to hire an adequate lawyer?

What if you are famous, and you are being hounded by a publicity seeking prosecutor on a malum prohibitum lawyer gotcha?

What if you are a productive male, and are pursued in a witch hunt by a feminist prosecutor or its male running dog?

Because of the utter failure of the criminal justice, allowing massive criminality, and arbitrarily persecuting a small number of political adversaries, the prosecutor has no moral standing. Because of its self dealt legal immunity, isn't all out personal attack full justified in the law (legal duties to the defendant enumerated in rules of evidence, conduct, criminal procedures), in formal logic (the contrapositive of a true assertion is true), and in policy (to deter the Little KGB bastard)?

What if you were being targeted, and we decided to exercise the discretion to prosecute just one the 12 federal laws and regulations violated by every citizen in the US every day?

Briefly, I see the federal prosecutor as allowing massive federal criminality, then using the office as a tool of self aggrandizement and a career stepping stone, so on the same level as the Mafia, basically, worthless, needing wholesale replacement. High false negative rate, high false positive rate. An incompetent, a worthless, slow shuffling, coffee slurping, government worker, giving back no value to the taxpayer.

Posted by: Supremacy Claus | Mar 4, 2014 8:44:46 AM

Bill, I can give you dozens of examples of prosecutors "sentencing" poorly using severe federal MMs for lower-level offenders (Angelos, Border Agents, Lett, Williams, Young are just a few cases that come to mind). Meanwhile, you keep harping on a single CP case. That provides for me a telling indication that even the staunchest defenders of the status quo cannot really make a strong argument that the harms of too much judicial sentencing power are worse than the harm of too much prosecutorial sentencing power.

Long story short, you trust/defend big federal government here in the form of prosecutors being given broad power through MMs to scare and intimidate Americans to try to keep reducing crime with no real transparency or accountability. Of course, there is little connection between the cases in which federal MMs are most often used --- drug dealing, gun use, CP receipt --- and the crimes that have been reduced. So, like most fans of big federal government, you support the big gov status quo even though there is little strong basis to think the gov is truly effective here.

Posted by: Doug B. | Mar 4, 2014 8:50:51 AM

Doug --

"Bill, I can give you dozens of examples of prosecutors "sentencing" poorly using severe federal MMs for lower-level offenders (Angelos, Border Agents, Lett, Williams, Young are just a few cases that come to mind)."

My recollection is that those defendants were offered deals to much lower sentences and turned them down out of arrogance, or to make a political point.

Well, the way life works, you pay a price for arrogance. I have expressly supported clemency for Angelos, but he made his own bed when (1) he committed the crimes he was accused of, (2) falsely denied doing so, and (3) turned down a perfectly fair deal. Personally, I think he's paid enough of a price, but he has no grounds to continue whining. See (1), (2), and (3).

"Meanwhile, you keep harping on a single CP case."

That's because you keep avoiding it. It's also because it's a wonderful tip-off as to where sentencing is actually headed if the SSA passes.

Of course, if you're ready to admit that Jack Weinstein is a lawless, pro-pornography ideologue, I'll let it go. Will you?

"That provides for me a telling indication that even the staunchest defenders of the status quo cannot really make a strong argument that the harms of too much judicial sentencing power are worse than the harm of too much prosecutorial sentencing power."

Your mind is made up on this question, so I will NEVER make what is, in your view, a "strong argument." It has been strong enough, however, for me to have been sought out to make it by MSNBC, PBS, USA Today, US News & World Report, CBS, the NYT, the WSJ and (if I'm recalling this correctly) a documentary film maker. So your view of the strength of the argument would not appear to be shared by all.

Posted by: Bill Otis | Mar 4, 2014 2:09:19 PM

Bill, I think all those media folks are seeking you out because nobody else is willing (or perhaps able) to make a robust argument in support of federal MMs. What does that tell you? I keep trying to find others as willing or as able to defend the federal MM status quo, but I keep finding it much, much easier to find folks (including prominent GOP folks) who see the need for reform.

On the arrogance point, you are wrong for Lett (he pleaded guilty), as did Williams eventually. On the others, is it REALLY your view that someone who exercises his trial rights "out of arrogance, or to make a political point" or perhaps even based on a view that they are innocent on certain key charges (as was true for the others) OUGHT TO SERVE AN ADDITIONAL 10 years (Border Agents) or 15 years (Young) or 40+ years (Angelos) or 75+ years (Williams) just for that decision to go to trial and "has no grounds to continue whining" about having their decision functionally punished this way? Perhaps this is your view --- but it also would explain why so few folks are as eager as you to defend the impact of MMs in these kinds of cases.

I do not know Judge Jack Weinstein well, and I have only met him once or twice, but I have read many of his lengthy opinions and nothing in those opinions suggests to me he is "lawless." Also, his decision in one case to give one defendant a 30 month prison sentence instead of a 60 month sentence for downloading child porn does not seem to make him a pro-pornography ideologue.

How about this if you want to focus on federal CP cases and sentences for downloaders: help me count and identify any and every federal prosecutors who has declined to prosecute a CP case and/or has allowed CP downloading to be charged/pleaded as a possession offense rather than receipt offense. Then we can also count and identify all the judges who have given sentences lower that 30 months to CP downloaders. Once we have list --- which, I assume, you would think is fully populated by "lawless, pro-pornography ideologues" --- we can together write a letter to the AG and members of Congress and CJ Roberts about what we think ought to be done in response to what we have discovered about the persons now working in the executive and judicial branches of our federal government.

I am not kidding, Bill. If you really truly think how Jack Weinstein exercised his sentencing judgment in the Corey Reingold case demonstrates that he is a "lawless, pro-pornography ideologue," I would be very eager to work with you to assemble a list of all current federal prosecutors and judges who have exercised similar sentencing judgment. (I expect there will be a lot more federal prosecutors on the list than federal prosecutors, though of course there are 5 times as many AUSAs than federal sentencing judges.)

Posted by: Doug B. | Mar 4, 2014 5:30:44 PM

There are also many cases in which the prosecutor agreed--either expressly or by not objecting--to sentences below 30 months for CP downloaders. Be sure to put those pro-pornography ideologues on your list, too, Doug.

Posted by: A defender (of humanity) | Mar 5, 2014 12:05:35 PM

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