Sentencing Law and Policy

"Marijuana Nation: The New War Over Weed"

The title of this post is the name given to this new CBSNews.com "special report on the evolving debate over marijuana legalization in the United States." Here are the titles and links to some of the new pieces in the series (including one with a Half-Blood Prince tie-in just in time for the movie's openning):

• High Stakes: A Call to Legalize Marijuana

• Poll: 41 Percent Support Pot Legalization

• America's Love-Hate History with Pot

• Inside Holland's "Half Baked" Pot Policy

• Pot No Longer Focus of Anti-Drug Campaigns

• Harry Potter Star Could Face 14 Years For Growing Weed

Of course, readers are welcomed and encouraged to attempt clever Harry Potter jokes or references in light of this last item.  For the record, I always had a suspicion that the Potter version of Mandrake was a variation on the wicked weed: that plant helped "loosen up" those who had been petrified in Harry Potter and the Chamber of Secrets). 

Noting the latest state of the crack-powder sentencing debate

The Washington Post has this new article reviewing the latest developments in the never-ending debate over federal crack and powder sentencing terms.  The piece is headlined "Two Judges Target Cocaine Penalties: Disparity for Crack Crimes Criticized," and here is how it starts:

Federal judges are beginning to equalize punishment for crack and powder cocaine crimes, resulting in shorter prison terms for crack dealers and putting pressure on Congress to address a wide disparity in how the legal system handles cocaine-related offenses.

In two recent rulings and interviews, a federal judge in the District and one in Iowa said they had policy differences with Congress and a judicial commission that they said did not go far enough to change the guidelines for crack sentences in 2007.  From now on, the judges wrote, they will calculate sentences for crack offenders by using the more-lenient sentencing guidelines for powder cocaine crimes.

Recent Supreme Court rulings and supportive statements from top Justice Department officials paved the way for the judges' decisions.  Nonetheless, such unilateral action from the bench is unusual.  Legal scholars said the decisions highlight the judiciary's irritation at the slow pace of sentencing reform as Congress considers the first major revision of crack statutes in decades.

Regular readers with a good memory will know that the two rulings discussed in this article are Judge Mark Bennett's opinion in Gully (discussed here) and Judge Paul Friedman's opinion in Lewis (discussed here).

New report urging drug sentencing reform in Massachusetts

This press release made available at FAMM provides this report on a new state bar report urging drug sentencing reforms in Massachusetts:

Massachusetts must enact meaningful drug reform for non-violent offenders, focusing on education and treatment instead of incarceration and punishment, according to a report of the Massachusetts Bar Association’s Drug Policy Task Force.  Mandatory minimum sentencing reform and diversion to treatment, alone, could save the state more than $25 million a year.

“This comprehensive report has identified many ways in which our drug policy in Massachusetts needs repair,” said David W. White Jr., MBA past president and chair of the MBA Drug Policy Task Force.  “These are problems that we cannot afford to ignore.  We have made several recommendations which will reduce the rate of crime, which will save the taxpayers money and which will help rebuild families and communities.”

Converting from criminal prosecution of non-violent drug offenders to treatment of their addictions is the overall message of the report, “The Failure of the War on Drugs: Charting a New Course for the Commonwealth.”  A product of more than one year of research and consideration, the report was created by a task force of nearly three dozen prominent leaders, including lawyers, law enforcement, the judiciary, mental health professionals, physicians, social workers and public policy advocates.

The full report is available at this link.  Here is the first paragraph of the executive summary:

It has become evident that the Commonwealth’s policies with regard to drug education, drug treatment, and punishment for drug offenses are ineffective.  The system is broken and it is badly in need of repair. Drug education programs fail to effectively educate the young and to reduce the likelihood of their using alcohol and drugs.  Treatment opportunities are limited by lack of funding, and residents who could benefit from treatment are denied the opportunity.  Many end up in jail or prison, where treatment is again limited. Incarceration is not an effective deterrent to most drug crimes, and the current sentencing system, including mandatory minimum sentences for many drug offenses, does not effectively reduce the likelihood of recidivism.  The taxpayers of Massachusetts could get far greater value for their taxes with improved education and treatment. Changing policies from emphasis on incarceration to more encouragement for treatment would allow us to save money, reduce crime, and rebuild families and communities.

Notable recent comments about sentencing reforms from AG Holder

Thanks to this post at TalkLeft, I saw that Attorney General Eric Holder spoke about the crack-powder sentencing disparity and other drug sentencing issues on Friday at the D.C. Court of Appeals Judicial Conference. His speech is available at this link, and here are some of the notable sentencing comments:

In my career as a prosecutor and as a judge here in Washington, I often saw too many capable, fundamentally good young people sacrifice their claim to a future because they chose to become involved in criminal, but non-violent, narcotic offenses.  Now, the Department of Justice will never back down from its duty to keep neighborhoods safe from the ills of drug abuse and the collateral damage from narcotics trafficking.  But we need to make sure we discharge this duty in a way that is fair and right.  And to do that, we have to take time to think through our approach to sentencing.

It is the view of this Administration that the 100-to-1 crack-powder sentencing ratio is simply wrong.  It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes . It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups.  I know the American people can see this.  And that perception of unfairness undermines governmental authority in the criminal justice process and breeds disrespect for the system.  It leads victims and witnesses of crime to think twice before cooperating with law enforcement, tempts jurors to ignore the law and facts when judging a criminal case, and draws the public into questioning the motives of its officials.  The result is that some drug offenders wind up right back on the streets without any punishment or rehabilitation and some go to jail for long and unfair periods of time – which is exactly the opposite outcome that tougher sentencing laws were meant to ensure.

I am confident that most of us agree that this situation benefits no one and must be reformed.  But we also know that doing so won’t be an easy task.  Agreeing on the problem is just the beginning, and we need to all put our heads together to come up with the fairest solution.  If our goal is to arrive at a 1-to-1 ratio, how do we get there?  We are asking this question now at the Department, alongside related questions, such as what the role of reentry programs for the incarcerated should be in a fully realized system of justice.

Pot doc scheduled to be finally sentenced... (and gets a year in prison)

As detailed in this AP piece, a high-profile case involving a dispenser of medical marijuana is suppose to finally get to sentencing today:

A medical marijuana dispensary owner is scheduled for sentencing in one of the nation's first cases since the Obama administration modified its pot policy.

Charles Lynch will appear Thursday in the Los Angeles federal courtroom of U.S. District Judge George Wu, who said at a hearing in April that he would consider reducing Lynch's mandatory minimum five-year sentence. Lynch was convicted of five offenses last year for running a medical marijuana collective in San Luis Obispo County.

As detailed in some of the posts below, this case has already generate a number of notable sentencing issues.

• Medical marijuana fans now feeling they can exhale and inhale
• Maui wowie: pot sentencing impacted by new federal policy
• Sentencing in medical marijuana case impacted by statutory minimums

UPDATE:  As detailed in this article from the New York Times, Lynch got a year in prison.  Here are the sentencing basics:

In imposing his sentence on Charles C. Lynch, who ran a dispensary in the surfing hamlet of Morro, Judge George H. Wu said the changed federal policy did not directly affect his ruling. But the judge talked at length about what he said were Mr. Lynch’s many efforts to follow California’s laws on marijuana dispensaries and the difficulty the judge had finding a loophole to avoid sending him to prison.  “I find I cannot get around the one-year sentence,” Judge Wu said of federal sentencing laws.

The judge said he had reduced the sentence from a mandatory five years because Mr. Lynch had no criminal record or history of violence, and did not fit the strict definition of a “leader” of a criminal enterprise.

"Cocaine Cases in Limbo as End Looms for Sentencing Disparity"

The title of this post is the title of this interesting article in today's New Jersey Law Journal. Here are excerpts:

The Obama administration's call for the elimination of mandatory jail terms for certain crack-cocaine offenders is beginning to filter down to U.S. Attorneys' Offices, but not fast enough for defense lawyers.

The administration announced in April that it favors reform of a 20-year-old law that mandates a sentence of at least five years for possession of 500 grams of powder cocaine with intent to distribute and the same penalty for five grams of crack cocaine.... Bills to end the disparity have been introduced in Congress and [Assistant Attorney General Lanny] Breuer told the legislators that the administration also will develop recommendations....

Some defense lawyers say the Justice Department doesn't need to wait for legislation to end the disparity.  Yet it is impossible to tell from the Justice Department's guidance to U.S. attorneys whether anything has changed in the trenches.  And while the government figures out what it wants to do, a request for adjournments of sentencings may be one of the defense strategies....

The chief issue is what the Justice Department had in mind when it sent guidance to U.S. attorneys after Breuer's April 29 testimony, at a Senate judiciary subcommittee hearing, calling for an end to the disparity.  Justice Department spokesman Ross Weingarten declines to discuss what the department told U.S. attorneys beyond saying the instructions were in keeping with Breuer's testimony.  And there isn't much meat in the version that U.S. Attorneys' Offices are circulating to defense counsel either in memo form or in conversation....

Michael Nachmanoff, the federal public defender in Alexandria, Va., who testified before Congress last year on behalf of his colleagues around the country, says prosecutors can put the policy into effect, particularly in its charges in cases involving 50 or more grams of crack. Conviction with that amount requires a 10-year minimum sentence, the same as for more than 5,000 grams of powder cocaine. "Lanny Breuer said point blank that the ratio should be 1-to-1," Nachmanoff says. "Prosecutors around the country today could start charging on a 1-1 ratio and avoid the mandatory minimums."

Cases in the pipeline would be more difficult, but when it comes time to sentence those offenders, prosecutors could seek to vacate the conviction with the idea of following with an information charging possession of lesser amount that don't trigger the mandatory sentences, he says. "Unfortunately, there is a gap between the expression of a changed policy on the part of the assistant attorney general and what is happening in the field," he says.

He says that in talking to defense lawyers around the country, "what we see is there is a huge amount of variation in the way prosecutors are handling these cases, even within a district to district." "In some parts of the country, prosecutors are telling a judge the 1-1 ratio is the way to go, but it sounds like prosecutors in New Jersey or other states maybe aren't saying that clearly or acting that way," Nachmanoff says.

In the meantime, defense lawyers are attaching copies of Breuer's testimony to their sentencing pleadings "and telling judges, 'this is the position of the Justice Department, whatever the people in the field are saying,' " Nachmanoff says.

Some related recent posts on crack sentencing debates:  

• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• Watching the webcast of the Senate crack disparity hearing
• New York Times editorial on crack sentencing
• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Has there been any in-court impact from DOJ's new crack sentencing policy?
• Thoughtful new district court opinion adopting 1:1 crack/powder ratio

The persistent and enduring challenges of cracking the crack disparity in Congress

As detailed on this official hearing page, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee has been holding a hearing on crack sentencing.  As I predicted in this prior post, it does appear from the written testimony (now linked from the hearing page) that everyone involved in the hearing is speaking out against the current 100:1 drug weight ratio that now exists in federal statutory sentencing provisions.  But while the status quo 100:1 ratio is being universally criticized, exactly what should take its place is subject to continuing debate.

Specifically, consider this passage from the written testimony of Joseph Cassilly, the President of the National District Attorneys Association:

I am testifying on behalf of the National District Attorneys Association, the oldest and largest organization representing State and local prosecutors. I have attached a resolution adopted by NDAA regarding the sentencing disparity between crack and powder cocaine. NDAA agrees that some adjustment is warranted, but just as the 100:1 disparity cannot be justified by empirical data we believe that the proposed 1:1 realignment of Federal penalties for crack versus powder cocaine also lacks any empirical or clinical evidence.  A random adjustment will have severe negative consequences on the efforts of this nation’s prosecutors to remove the destructive effects of crack and violence from our communities....

The nation’s prosecutors urge Congress to adopt a sentencing scheme with regard to the destruction caused by crack cocaine to our communities.  If there is a need to reduce the disparity between crack and powder cocaine then perhaps the solution is to increase sentences for powder cocaine.

Similarly, consider this passage from the written testimony of Bob Bushman on behalf of the National Narcotics Officers Association Coalition:

We have been asked, repeatedly, over the past few years about our views on legislative proposals to reduce the crack-powder disparity.  While we believe that the existing law has been a valuable tool in reducing the impact of crack on communities, we realize that it has also had a negative impact on some people’s perception of law enforcement. So, while we agree that it is appropriate for Congress to review the law, we also believe that Congress should consider a solution to narrow the disparity between crack and powder cocaine that includes lowering the threshold quantity for powder cocaine. We do not believe the best approach is to dramatically increase the threshold amount of crack that triggers the minimum penalty.

In other words, even though it does not appear anyone will come out in full-throated support for the current 100:1 crack/powder statutory status quo, there are still strong voices calling for preserving some significant disparity in crack/powder sentencing provisions and/or advocating that the solution is to make powder cocaine sentences harsher instead of making crack sentences softer.

This persistent and enduring reality — namely the robust policy debate over exactly how the current 100:1 disparity should be addressed — accounts for why I remain, as expressed here, depressingly skeptical that major federal sentencing changes in this area (or others) is imminent.  One of the fascinating lessons of modern sentencing reforms over the last few decades (especially at the federal level) is that it is relatively easy to enact legislation to increase sentences and extremely hard to enact legislation to reduce sentences.  

So, while advocates for lower sentence can and should remain hopeful in light of recent development, they also must be realistic about the political challenges of achieving broad and significant sentencing reforms in the legislative arena.  That is why I have been saying since November that federal sentencing reformers should focus principally on the USSC and courts, because status quo biases and the challenges of legislative inertia do not as directly prevent them from engineering major reforms (as Blakely and Booker highlighted so dramatically).

Some related recent posts on crack sentencing debates:  

• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• Watching the webcast of the Senate crack disparity hearing
• New York Times editorial on crack sentencing
• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Has there been any in-court impact from DOJ's new crack sentencing policy?
• Thoughtful new district court opinion adopting 1:1 crack/powder ratio

Upcoming House Judiciary subcommittee hearing on crack sentencing

As detailed on this official hearing page, the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee has a hearing on crack sentencing scheduled for the morning of Thursday, May 21.  The title of the hearing is "Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity?" and the witness list suggests that everyone involved will be speaking out against the current 100:1 drug weight ratio that now exists in federal statutory sentencing provisions.

Even though this hearing suggests continuing momentum for change to the current crack/powder statutory status quo, I remain depressingly skeptical that major federal sentencing changes in this area (or others) is imminent.  The many political challenges of reducing sentences — as well as the many practical challenges of giving retroactive effect to any reduced sentences — has thwarted needed reforms in this area (and others) for more than a decade.  I continue to hope that key legislative players get past talking the talk in Congress and start walking in the walk with actual legal changes.  But, until then, I encourage expectations to remain low, even though hopes are justifiably now very high for federal sentencing change we can believe in.

Some related recent posts on crack sentencing debates:  

• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• Watching the webcast of the Senate crack disparity hearing
• New York Times editorial on crack sentencing
• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Has there been any in-court impact from DOJ's new crack sentencing policy?
• Thoughtful new district court opinion adopting 1:1 crack/powder ratio

UPDATE:  Jeralyn at TalkLeft discusses this upcoming House hearing in this post.  More info can also be found at The Sentencing Project.

Thoughtful new district court opinion adopting 1:1 crack/powder ratio

I am pleased to be able to post a new opinion from a district court that provides a thorough and thoughtful account of why the court has adopted a 1:1 ratio for crack sentence cases.  Here is the openning paragraph and one key passage from US v. Gully, No. CR 08-3005-MWB (N.D. Iowa May 18, 2009):

Defendant Demetrius Darnell Gully was before the court on May 14, 2009, for sentencing on his guilty plea, without a plea agreement, to four charges of distributing less than 5 grams of crack cocaine, arising from “controlled buys” in January 2008, after a prior felony drug conviction in 2004. Three of the counts charged that the distributions occurred within 1,000 feet of a public playground or school.  This “crack” case raises the following questions: (1) Whether the court has discretion to impose a 1:1 crack-to-powder ratio in sentencing; and (2) whether a 1:1 ratio is appropriate in this case.  This written ruling addresses only these questions, although other matters were resolved at defendant Gully’s sentencing hearing....

[I]n this case, the prosecution offered no argument or logical reason why crack cocaine and powder cocaine should be treated differently, on the basis of the controlled substances themselves.  Rather, the prosecution reiterated the policy line, which this court rejects, that different treatment of crack and powder is appropriate in this case because of this defendant’s conduct, i.e., that the crack-to-powder ratio is an appropriate proxy for other kinds of harm or criminal conduct perceived to come with crack trafficking.  Again, this court believes that the appropriate course is to treat interchangeable forms of cocaine as equivalents, and to enhance punishment when additional criminal effects and use of weapons, for example, are present in a particular case.

Download Gully 1-1 crack sentencing

"Pot Activist Sentenced To 10 Years For Growing 1,000 Plants"

The title of this post is the title of this interesting article reporting on a federal sentencing from California.  Here are some more details:

A federal judge in San Francisco Monday sentenced a Lake County man to 10 years in prison for growing more than 1,000 marijuana plants, saying the marijuana activist appeared to "want to be a martyr for the cause."

The sentence for Charles "Eddy" Lepp, 56, was the mandatory minimum under federal law for growing more than 1,000 plants. U.S. District Judge Marilyn Patel said Lepp didn't qualify for a so-called "safety valve" exception with a lesser sentence because he testified at his trial last fall that he was a proud leader of others who grew marijuana on his land.

Patel told Lepp, "I think Mr. Lepp is very proud of what he's been doing. The problem is that now unfortunately, Mr. Lepp, it's caught up with you." "Maybe you want to be martyr for the cause," Patel said. "That will be your lot."

Patel said she thought the length of the sentence was excessive, but said it would be up to Congress to change the law.

Lepp, a disabled Vietnam veteran who says he is now a Rastafarian minister, was convicted in Patel's court in September of conspiring to grow and growing more than 1,000 plants on 23 acres he owns adjacent to state Highway 20 in Upper Lake.

Lepp had contended the marijuana was grown for medical use under California's compassionate use law and for spiritual practice in his Rastafarian religion. But he was not allowed to make either argument at his trial. U.S. drug laws don't allow state medical marijuana laws to be used as a defense in federal prosecutions.

Lepp said at the sentencing, "I've done all I can to comply with the laws and rules of the state in which I reside." He said he informed local authorities in 2004 that his land would be used to enable patients who didn't own land to grow marijuana for medical purposes."

Prosecutor David Hall told the judge, "I've never seen a man work harder to get time in prison than Mr. Lepp has." Lepp's attorney, Michael Hinckley, said outside of court that the sentence was "tragic" and said he will appeal.

Is the Obama Administration starting a (too slow?) withdrawal in the war on drugs?

This article from the Wall Street Journal, headlined "White House Czar Calls for End to 'War on Drugs': Kerlikowske Says Analogy Is Counterproductive; Shift Aligns With Administration Preference for Treatment Over Incarceration," provides some encouraging news for those who are eager for an end to the drug war.  Here is how the piece begins:

The Obama administration's new drug czar says he wants to banish the idea that the U.S. is fighting "a war on drugs," a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

In his first interview since being confirmed to head the White House Office of National Drug Control Policy, Gil Kerlikowske said Wednesday the bellicose analogy was a barrier to dealing with the nation's drug issues. "Regardless of how you try to explain to people it's a 'war on drugs' or a 'war on a product,' people see a war as a war on them," he said. "We're not at war with people in this country."

Mr. Kerlikowske's comments are a signal that the Obama administration is set to follow a more moderate -- and likely more controversial -- stance on the nation's drug problems. Prior administrations talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.

The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment's role growing relative to incarceration, Mr. Kerlikowske said.

Valuably, Arianna Huffington has this potent follow-up commentary in which she stresses the need for the Obama Administration to walk as well as talk the talk in this arena. Her piece is titled "Ending the War on Drugs: The Moment is Now," and here are excerpts:

[W]hen it comes to putting its rhetoric into action, the Obama administration has faltered.

Just a week after the Attorney General said there would be no more medical marijuana raids, the DEA raided a licensed medical marijuana dispensary in California. Obama's '09-'10 budget proposes to continue the longstanding ban on federal funding of needle exchange programs.

The current budget is still overwhelmingly skewed in favor of the drug war approach -- indeed, it allocates more to drug enforcement and less to prevention than even George Bush did.

Testifying [Thursday] in front of the House Judiciary Committee, Holder, in his opening statement, called for a working group to examine federal cocaine sentencing policy: "Based on that review, we will determine what sentencing reforms are appropriate, including making recommendations to Congress on changes to crack and powder cocaine sentencing policy." A working group? Why? As a senator, Obama co-sponsored legislation (introduced by Joe Biden) to end the disparity. What further review is needed?...

So the question becomes: is the Obama administration really committed to a fundamental shift in America's approach to drug policy or is this about serving up a kinder, gentler drug war?

And this at a time when the tide is clearly turning. Inspired by the massive budget crises facing many states, and the increase in drug violence both at home and abroad -- leaders on all points across the political spectrum appear more willing to rethink our ruinous drug policies.

Gov. Arnold Schwarzenegger has called for "an open debate" and careful study of proposals to legalize, regulate, and tax marijuana. Former Mexican President Vicente Fox has also urged renewing the debate, saying that he isn't convinced taxing and regulating drugs is the answer but "why not discuss it?" Arizona Attorney General Terry Goddard, pointing to evidence that Mexican drug cartels draw 60 to 80 percent of their revenue from pot, suggested legalization might be an effective tool to combat Mexican drug traffickers and American gangs....

I understand that drugs continue to be a political hot potato, fueled by what the Latin American presidents described as "prejudices and fears that sometimes bear little relation to reality."   And I can easily picture some on the president's team advising him to keep the issue on the backburner lest it turn into his "Don't Ask, Don't Tell."

But the cost of the drug war -- both human and financial -- is far too high to allow politics to dictate the administration's actions. Indeed, with all the budget cutting going on, how can anyone justify spending tens of billions of dollars a year on an unwinnable war against our own people?

Change won't be easy.  The prison-industrial complex has a deeply vested interest in maintaining the status quo.  Which is why we need to keep the pressure on the president and his team to follow through on their drug policy promises.

As with the regulation of Wall Street, real reform of our nation's drugs policies won't happen without someone in the administration making it a top priority.

As I have suggested in a number of prior posts, one symbolically important gesture that President Obama could and should make in this regard is to commute the sentences of a few non-violent drug offenders who have already served lots of time in prison.  A particularly sensible group of potential candidates for some clemency relief might be the most sympathetic crack defendants who have not been able to get effective sentence reductions under the US Sentencing Commission's liimited reduction of its crack guidelines.

Some related posts on the drug war and clemency:  

• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Republican governor signals openness to legalizing marijuana
• Thoughtful academic thoughts on ending marijuana prohibitions
• "Time For Marijuana Legalization?"
• Terrific commentary and assessment of the war on drugs
• More calls for an end to the drug war and legalization of marijuana
• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Has there been any in-court impact from DOJ's new crack sentencing policy?
• New ACS brief urging a new approach to drug policy
• Another public and potent call to reinvigorate the pardon power
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Still waiting ... and waiting ... and waiting ... on the clemency front

• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days

A (third-hand hearsay) report on how DOJ is now dealing with crack sentencings

In prior posts, I have been wondering how local federal prosecutors would approach crack sentencings in the wake of advocacy from the new Justice Department last week in Congress urging the complete elimination of any crack/powder disparity.  This afternoon, I got a partial (third-hand hearsay) answer when I received from a friend of the blog via e-mail what purports to be part of a letter from a federal prosecutor to defense counsel in one federal district.  Here is the key section of that letter:

United States Attorney’s Offices were provided with new guidance concerning sentencing for crack cocaine offenses.  This guidance provides that United States Attorney’s Offices should inform courts that the Department of Justice believes Congress and the United States Sentencing Commission should eliminate the crack/powder cocaine disparity.  Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses.  Until Congress acts, the Department of Justice recognizes courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a).

The Department of Justice’s position with respect to variance motions in crack cocaine cases is to be determined on a case-by-case basis.  The Department of Justice will continue to charge provable threshold quantities of crack cocaine triggering mandatory minimums.

Some recent related posts:

• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Watching the webcast of the Senate crack disparity hearing
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• DOJ's basic game-plan while urging crack sentencing reform from Congress
• Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy
• Has there been any in-court impact from DOJ's new crack sentencing policy?

Republican governor signals openness to legalizing marijuana

Coincidentally, on the same day that I engendered a robust debate when suggesting that the GOP might start considering a new set of approaches to crime and punishment, a prominent Republican governor has indicated a willingness to consider legalizing and taxing marijuana.  Of course, as this Reuters piece details, this suggestion is coming from a non-traditional member of the GOP:

California Governor Arnold Schwarzenegger said on Tuesday he welcomes a public debate on proposals to legalize and tax marijuana, which some suggest could provide a lucrative new revenue source for the cash-strapped state.  The Republican governor, whose term in office expires at the end of next year, was asked about the idea of treating pot like alcohol at an appearance in northern California to promote wildfire preparedness.

"No, I don't think it's time for that, but I think it's time for a debate," he said. "And I think we ought to study very carefully what other countries are doing that have legalized marijuana and other drugs, what affect it had on those countries, and are they happy with that decision."...  He said a decision to legalize marijuana, which has been outlawed in the United States since 1937, should not be made on the basis of raising revenues alone.

Schwarzenegger's comments come days after a statewide Field Poll found that 56 percent of California voters support the idea of legalizing cannabis for recreational use and taxing its proceeds.

"Why Neuroscience Matters for a Rational Drug Policy"

The title of this post is the title of this interesting new piece I found via SSRN.  Here is the abstract:

Drug addiction reflects abnormal operation of normal neural circuitry.  More than physical dependence, addiction represents changes in the brain that lead to increased craving and diminished capacity for the control of impulses.  Given the growing biological understanding of addiction, it is critical for scientists to play an active role in drug policy because, as neuroscientific understanding develops, we will, to a much greater degree, be able to target specific behavioral, pharmaceutical, and neurological treatments for specific addictions.  It is important to emphasize that biological explanations will not become equivalent to exculpation. Instead, the goal of explanation is to introduce rational sentencing and the opportunity for customized rehabilitation.  This approach is likely to show more utility and less cost than incarceration.  The neuroscientific community should continue to develop rehabilitative strategies so that the legal community can take advantage of those strategies for a rational, customized approach to drug addiction.

Some recent related posts:

• "America Should Decriminalize Drugs":
• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Thoughtful academic thoughts on ending marijuana prohibitions
• "Time For Marijuana Legalization?"
• Terrific commentary and assessment of the war on drugs
• Renewing a lawyerly pitch for ending drug prohibition
• More calls for an end to the drug war and legalization of marijuana

A helpful release at the start of the US Sentencing Commission's data conference

As previously blogged here, the United States Sentencing Commission is conducting a multi-day data and research conference, which started today.  Not coincidentally, I suspect, one can now find this new publication on the USSC's website:

Introduction to the Collection of Individual Offender Data by the United States Sentencing Commission:  This report introduces the process the United States Sentencing Commission uses to create its fiscal year individual offender datafiles from documents submitted to the Commission. Issues surrounding the use of differing form types and conflicting information among documents are also addressed.  The report is designed to help researchers use the Commission’s datafiles by providing answers to common data analysis questions.

Some related posts:

• Letter to the USSC about modern sentencing data
• US Sentencing Commission to conduct a data and research conference in May
• US Sentencing Commission releases 2008 Annual Report and Sourcebook

Has there been any in-court impact from DOJ's new crack sentencing policy?

The new crack sentencing policy talk from the new Justice Department (basics here and here) has justifiably garnered lots of media attention.  For example, over the weekend the San Francisco Chronicle had this front-page article, headlined "Advocates predict change in cocaine sentences."  And today I have seen these editorials supporting the equalization plan now proposed by DOJ:

• From the Deseret News here, "End the cocaine disparity"
• From the Chattanooga Times Free Press here, "Unfair sentence for crack cocaine"

But while others continue to call for Congress to embrace DOJ's new suggestion to eliminate the crack/powder disparity, I continue to wonder whether there has been (or will be) any in-court fallout from DOJ policy even before Congress gets around to acting. 

It surely will take weeks (and probably many months) before DOJ's advocacy produces legislation that "completely eliminates the sentencing disparity between crack and powder cocaine."  Meanwhile, nearly 100 crack sentences are imposed in federal courts each and every week (and more are appealed each week).  Were any of the sentencings late last week impacted by DOJ's new crack sentencing policy?  Will any crack sentencings scheduled for this coming week be affected?  In my view, they certainly should be, but that does not mean they will.

Some recent related posts:

• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Watching the webcast of the Senate crack disparity hearing
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• New York Times editorial on crack sentencing
• DOJ's basic game-plan while urging crack sentencing reform from Congress
• Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

New York Times editorial on crack sentencing

The New York Times has this new editorial, headlined "Fairness in Drug Sentencing."  Here are snippets:

Congress’s decision to mandate longer prison terms for people arrested with crack cocaine than those caught with the powdered form of the drug was both irrational and discriminatory....

Congress has repeatedly ignored calls to equalize sentencing, partly because Justice Department officials in previous administrations have argued against it. This week, however, Lanny A. Breuer, the new chief of the Justice Department’s Criminal Division, told lawmakers that it was time to revisit the crack/cocaine disparity.

Mr. Breuer argued that the sentencing disparity was “difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine.” The law was especially problematic, he continued, “because a growing number of citizens view it as fundamentally unfair.”

Mr. Breuer is right. Instead of perpetuating this discrimination, Congress should quickly move to equalize the penalties for the possession of crack and cocaine.

Some recent related posts:

• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Watching the webcast of the Senate crack disparity hearing
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• DOJ's basic game-plan while urging crack sentencing reform from Congress
• Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

DOJ's basic game-plan while urging crack sentencing reform from Congress

Here is a copy of the written testimony from Assistant Attorney General Lanny Breuer submitted to the Senate Judiciary Committee for this morning's hearing on federal crack sentencing (basics here).  The last two substantive paragraphs provide an outline of what DOJ is doing internally and also how it plans to proceed in upcoming cases:

Earlier this month the Attorney General asked the Deputy Attorney General to form and chair a working group to examine federal sentencing and corrections policy. The group’s comprehensive review will include possible recommendations to the President and Congress for new sentencing legislation affecting the structure of federal sentencing. In addition to studying issues related to prisoner reentry, Department policies on charging and sentencing, and other sentencing-related topics, the group will also focus on formulating a new federal cocaine sentencing policy; one that completely eliminates the sentencing disparity between crack and powder cocaine but also fully accounts for violence, chronic offenders, weapon possession and other aggravating factors associated – in individual cases – with both crack and powder cocaine trafficking. It will also develop recommendations for legislation, and we look forward to working closely with Congress and the Sentencing Commission on this important policy issue and finding a workable solution.

Until a comprehensive solution – one that embodies new quantity thresholds and perhaps new sentencing enhancements – can be developed and enacted as legislation by Congress and as amended guidelines by the Sentencing Commission, federal prosecutors will adhere to existing law.  We are gratified that the Sentencing Commission has already taken a small step to ameliorate the 100:1 ratio contained in existing statutes by amending the guidelines for crack cocaine offenses.  We will continue to ask federal courts to calculate the guidelines in crack cocaine cases, as required by Supreme Court decisions.  However, we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio.  Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.

This is a nice effort to dodge some of the questions I raised in this "now what" post, but this line still jumps out: "we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio."  Given that DOJ recognizes that federal sentencing judges have authority to "create their own quantity ratio," and given that DOJ now seeks to "completely eliminate[] the sentencing disparity between crack and powder cocaine, why shouldn't prosecutors simply recommend in each on-going crack case that sentencing judges should not embrace (or should I say "create") a 1:1 ratio going forward?  Or, perhaps the better question is, shouldn't prosecutors now just express agreement with defense counsel in on-going crack case when they suggest that a 1:1 ratio be adopted by a sentencing court?

Some recent related posts:

• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Watching the webcast of the Senate crack disparity hearing
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

Especially because the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) prompts many real-world questions for on-going crack cases (noted here), I am eager to hear about and post details of any early courtroom consequences of DOJ's new policy perspective.  In particular, I hope litigants and/or court information officers will send me information about any notable documents or rulings that make reference to the new DOJ policy.

Some recent related posts:

• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Watching the webcast of the Senate crack disparity hearing
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• "Time to end the crack disparity"
• Will "National Call-In Day for Justice" achieve anything?
• New report from The Sentencing Project on the drug war's racial dynamics
• What might 2009 have in store for . . . drug sentencing law and policy?

With the new DOJ advocating completely eliminating crack/powder disparity, now what?

Because the wheels of federal sentencing reform move slowly in Congress, the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) probably will take a while to become new sentencing legislation.  But the realities of federal sentencing decision-making move very quickly in the courtroom.  Specifically, in fiscal year 2008 there were over 6000 crack sentences imposed in federal court, which means that over 100 crack defendants are sentences each and every week in federal court and that perhaps 20 or more crack defendants are scheduled to be sentenced just later today.

What should now happen in these upcoming crack sentencing cases later today and tomorrow and next week and next month?  What should happen in on-going sentencing appeals in which a defendant is complaining to a circuit court that his within-guideline sentence is unreasonable?  What should happen to those cases involving defendants getting the retroactive benefit of the new crack guidelines, but have seeking an even greater reduction than the US Sentencing Commission authorized?  And, whatever federal judges can and think they can/should now do, what will federal prosecutors nationwide be recommending that judges do?

Exciting times... and uncertain times.  I guess this is the inevitability consequence of change we can believe in.

UPDATE:  Both Senators Durbin and Feinstein have been asking hard questions about how to apply new rules to old cases, and nobody has really good answers (and Senator Feinstein used the term "parole" in her question, perhaps because even she does not completely realize there is no such concept in current federal criminal law).  Of course, one possible "easy" answer might be to take care of this problem through executive clemency mechanism, rather than forcing courts to deal with these matters.