Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Thursday, July 12, 2018

AG Jeff Sessions "surges" federal war against synthetic opioids in select counties

This new press release from the US Justice Department, headed "Attorney General Jeff Sessions Announces the Formation of Operation Synthetic Opioid Surge (S.O.S.)," reports on a notable new federal front in the modern war on drugs. Here are the details (with my emphasis added):

Attorney General Jeff Sessions today announced Operation Synthetic Opioid Surge (S.O.S.), a new program that seeks to reduce the supply of deadly synthetic opioids in high impact areas and to identify wholesale distribution networks and international and domestic suppliers.

As part of Operation S.O.S., the Department will launch an enforcement surge in ten districts with some of the highest drug overdose death rates. Each participating United States Attorney’s Office (USAO) will choose a specific county and prosecute every readily provable case involving the distribution of fentanyl, fentanyl analogues, and other synthetic opioids, regardless of drug quantity. The surge will involve a coordinated DEA Special Operations Division operation to insure that leads from street-level cases are used to identify larger scale distributors. Operation S.O.S. was inspired by a promising initiative of the United States Attorney’s Office in the Middle District of Florida involving Manatee County, Florida.

"We at the Department of Justice are going to dismantle these deadly fentanyl distribution networks. Simply put, we will be tireless until we reduce the number of overdose deaths in this country. We are going to focus on some of the worst counties for opioid overdose deaths in the United States, working all cases until we have disrupted the supply of these deadly drugs," Attorney General Sessions said. "In 2016, synthetic opioids killed more Americans than any other kind of drug.  Three milligrams of fentanyl can be fatal — that's not even enough to cover up Lincoln's face on a penny. Our prosecutors in Manatee County, Florida have shown that prosecuting seemingly small synthetic opioids cases can have a big impact and save lives, and we want to replicate their success in the districts that need it most.  Operation S.O.S. — and the new prosecutors who will help carry it out — will help us put more traffickers behind bars and keep the American people safe from the threat of these deadly drugs."...

In Manatee County, a county just south of Tampa with a population of about 320,000, overdoses and deaths skyrocketed in 2015 (780 overdoses/84 opioid related deaths) and 2016 (1,287 overdoses/123 opioid related deaths). In summer of 2016, local law enforcement reported frequent, street-level distribution of fentanyl and carfentanil for the first time.

To combat this crisis, the Middle District of Florida committed to prosecuting every readily provable drug distribution case involving synthetic opioids in Manatee County regardless of drug quantity.  The effort resulted in the indictments of forty five traffickers of synthetic opioids.  Further, from the last six months of 2016 to the last six months of 2017, overdoses dropped by 77.1% and deaths dropped by 74.2%. Overall, the Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average now of less than one per day.

I am not at all keen on the idea of federalizing every small local drug case, but these reported data from Manatee County, Florida leads me to understand why AG Sessions might want to try to expand a program that he believes has proven distinctly effective. The Attorney General also delivered this speech in conjunction with the announcement of this new surge. Here is how he described the new initiative:

It’s called Operation Synthetic Opioid Surge — or S.O.S.

I am ordering our prosecutors in 10 districts with some of the highest overdose death rates—including this one—to systematically and relentlessly prosecute every synthetic opioid case. We can weaken these networks, reduce fentanyl availability, and save lives.

We are going to arrest, prosecute, and convict fentanyl dealers and we are going to put them in jail. When it comes to synthetic opioids, there is no such thing as a small case.

Three milligrams of fentanyl can be fatal. That’s equivalent a pinch of salt. It’s not even enough to cover up Lincoln’s face on a penny. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.

Manatee County, Florida shows that a united and determined effort, focusing on fentanyl dealers, can save lives. Your counterparts in the U.S. Attorney’s Office in the Middle District of Florida tried this strategy in Manatee County, which is just south of Tampa. Like many parts of this country, they had experienced massive increases in opioid deaths in 2015 and 2016.

In response, they began prosecuting synthetic opioid sales, regardless of the amount. They prosecuted 45 synthetic opioids traffickers—and deaths started to go down. From the first six months of 2016 to 2017, overdose deaths dropped by 22 percent. This past January, they had nearly a quarter fewer overdoses as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average of one a day. Those are remarkable results.

As you implement this proven strategy, I am sending in reinforcements to help you. Last month, I sent more than 300 new AUSAs to districts across America .... It was the largest prosecutor surge in decades.

Today I am announcing that each of these ten districts where the drug crisis is worst will receive an additional prosecutor. As a former AUSA and U.S. Attorney myself, I know what you can do — and my expectations could not be higher. Our goal is to reduce crime, reduce fentanyl, and to reduce deaths, plain and simple. I believe that this new strategy and these additional prosecutors will have a significant impact.

July 12, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement

851_coverThe United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements).  A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication.  Here are highlights from the web account:

This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.

Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing.  The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.

Key Findings

Cases in which an 851 enhancement applied are rare.

  • The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
  • The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief.  There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.

The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.

  • In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
  • There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
  • Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn.  Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.

The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.

  • In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
  • Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).

While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.

  • Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
  • Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
  • Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
  • The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.

The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.

July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, July 09, 2018

Lots more great new Quick Facts publications from US Sentencing Commission

In this post a few days ago, I praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data.  Here are just a few of these publications I have been checking out:

There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.

July 9, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Saturday, July 07, 2018

Judge Jack Weinstein laments overuse of federal supervised release (and especially its revocation for marijuana use)

As regular readers know, US District Judge Jack Weinstein regularly produces interesting and important sentencing opinions, and his latest effort focuses on supervised release as well as marijuana reform. This New York Times article about this opinion, headlined "Brooklyn Judge Vows Not to Send People Back to Prison for Smoking Marijuana," starts with this accounting of the effort:

Noting that marijuana has become increasingly accepted by society, a federal judge in Brooklyn made an unusual promise on Thursday: He pledged he would no longer reimprison people simply for smoking pot.

In a written opinion that was part legal document, part mea culpa, the judge, Jack B. Weinstein, 96, acknowledged that for too long, he had been sending people sentenced to supervised release back into custody for smoking pot even though the drug has been legalized by many states and some cities, like New York, have recently decided not to arrest those who use it. Under supervised release, inmates are freed after finishing their prison time, but are monitored by probation officers.

“Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

The full 42-page opinion in US v. Trotter, No. 15-CR-382 (E.D.N.Y. July 5, 2018) (available here), is an interesting read and important for lot of reasons beyond the connections of criminal justice supervision and marijuana reform.  This first part of the introduction provides a taste for all the full opinion covers:

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release?  Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some.  As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

July 7, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, July 05, 2018

Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot

As reported in this local Ohio article, supporters of "a proposal to reduce penalties for nonviolent drug crime offenders submitted hundreds of thousands of signatures on Wednesday to put the measure on the November ballot." Here is more about the remarkable initiative that seems likely to generate some interesting debate in the midst of a big election year in Ohio:

The "Neighborhood Safety, Drug Treatment and Rehabilitation" amendment is backed by a bipartisan coalition of community, law enforcement, faith and business leaders and groups. The Ohio Safe and Healthy Communities Campaign submitted 730,031 signatures Wednesday; 305,591 valid signatures of Ohio registered voters are needed to qualify for the ballot....

Under the drug treatment and rehabilitation amendment:

  • Possessing, obtaining or using a drug or drug paraphernalia would be a misdemeanor offense, with a maximum punishment of 180 days in jail and $1,000 fine. First and second offenses within a two-year period could only be punished with probation.
  • Convicted individuals could receive a half day credit against their sentence for each day or rehabilitative work or programming, up to 25 percent of the total sentence.
  • Individuals on probation for a felony offense would not be sent to prison for non-violent violations of that probation.
  • Individuals convicted of such crimes could petition a court to reclassify the offense as a misdemeanor, which could result in their release from prison.

The provisions would not apply to convictions for the sale, distribution or trafficking of drugs or to convictions for any drug offense that, based on volume or weight, are a first-, second- or third-degree felony.

Money saved from those affected by the amendment would be diverted to substance abuse programs (70 percent) and to crime victims services (30 percent.)

Among the many remarkable elements of the ballot initiative, which can be read in full at this link, is that it proposes a state constitutional amendment; voter approval would make it nearly impossible for the Ohio General Assembly to alter the amendment's terms without another initiative vote.  Here is how the summary of the amendment explains its goals at the outset:

This Amendment would add a new section 12 to Article XV of the Ohio Constitution to reduce the number of people in state prison for low-level, nonviolent drug possession or drug use offenses or for non-criminal probation violations and by providing sentence credits for participation in rehabilitative programs and to direct the savings achieved by such reductions in incarceration to drug treatment programs and other purposes.

I have already heard a few folks express support for the initiatives substantive goals but concerns about amending the Ohio Constitution to achieve those goals. Interesting times.

July 5, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, July 02, 2018

Notable Sixth Circuit panel reverses as procedurally unreasonable big upward variance in cocaine sentence based on opioid overdoses

On Friday, the Sixth Circuit handed down a notable new sentencing opinion in US v. Fleming, No. 17-3954 (6th Cir. June 29, 2018) (available here). The start of the opinion reviews its essentials:

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment.  At his sentencing hearing, the district court doubled that.  It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl.  Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing.  Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed.  Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

Here is small part of the Sixth Circuit panel's analysis:

Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids.  Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

This ruling strikes me as notable or at least two reasons beyond its substantive particulars: (1) one of jurists on Prez Trump's SCOTUS short list, Judge Raymond Kethledge, was one of the judges on this Fleming panel, and (2) this Cleveland.com report highlights that the erroneous sentencing judge has a history of unreasonably long sentences:

An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday -- this time because of his reliance on a cleveland.com article....

Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.  Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give any good reasons for the higher sentences, the 6th Circuit ruled.

July 2, 2018 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, June 29, 2018

Two new documents from Center for American Progress on "Ending the War on Drugs"

Download (17)The Center for American Progress released this week two notable new short papers, titled "Ending the War on Drugs" and "Ending the War on Drugs: By the Numbers."  Here are links to both documents and their introductions:

"Ending the War on Drugs":

Nationwide, communities face an unprecedented rise in substance misuse fatalities. A record 63,600 overdose deaths were recorded in 2016, two-thirds of which involved opioids.  To stem the tide of this crisis, some communities are doubling down on the war on drugs, despite clear evidence that increasing arrests and incarceration does not lower drug use.  But an increasing number of cities are bucking the trend and adopting models that treat substance misuse as a disease, not a crime.  Instead of criminalizing substance use disorders, communities are focusing on saving lives and reducing the harmful effects of drug use.

The idea of “harm reduction” may seem like common sense today, but it signifies a radical departure from traditional U.S. responses to drug use, which relied heavily on the criminal justice system.  More and more cities are expanding access to clean syringes, launching safe-injection facilities, and decriminalizing possession of controlled substances. Public acceptance of these approaches was unthinkable just a few years ago.  Today, however, they are filtering into the mainstream.  In fact, support for harm reduction spans the ideological spectrum.  These strategies are underway in red and blue states alike, representing promising steps toward dismantling the country’s failed drug policy agenda.

"Ending the War on Drugs: By the Numbers"

President Richard Nixon called for a war on drugs in 1971, setting in motion a tough-on-crime policy agenda that continues to produce disastrous results today.  Policymakers at all levels of government passed harsher sentencing laws and increased enforcement actions, especially for low-level drug offenses.  The consequences of these actions are magnified for communities of color, which are disproportionately targeted for enforcement and face discriminatory practices across the justice system. Today, researchers and policymakers alike agree that the war on drugs is a failure.  This fact sheet summarizes research findings that capture the need to replace the war on drugs with a fairer, more effective model that treats substance misuse as a public health issue — not a criminal justice issue.

June 29, 2018 in Data on sentencing, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, June 25, 2018

Can we predict how federal immigration crackdowns will impact the modern drug war?

The question in the title of this post is prompted by this USA Today piece headlined "DOJ: Trump's immigration crackdown 'diverting' resources from drug cases." Here are excerpts:

Federal prosecutors warned they were diverting resources from drug-smuggling cases in southern California to handle the flood of immigration charges brought on by the Trump administration’s border crackdown, records obtained by USA TODAY show.

Days after Attorney General Jeff Sessions instructed prosecutors to bring charges against anyone who enters the United States illegally, a Justice Department supervisor in San Diego sent an email to border authorities warning that immigration cases “will occupy substantially more of our resources.”  He wrote that the U.S. Attorney’s Office there was “diverting staff, both support and attorneys, accordingly.”...

Sessions last month ordered federal prosecutors along the southwest border to bring criminal charges against every adult caught entering the United States illegally, a “zero tolerance” push meant to deter migrants. Those cases typically are seldom more than symbolic — most of the people who are charged are sentenced to no additional jail time and a $10 fee — but they have served as the legal basis for separating thousands of children from their parents at the border.

The border crackdown has produced a high-speed assembly line of minor cases in federal courts from California to Texas, more than doubling the caseloads there.  This month alone, USA TODAY identified more than 4,100 migrants who were charged with minor crimes after crossing into the United States from Mexico.

Kelly Thornton, a spokeswoman for the U.S. Attorney’s Office, said in a statement that the Justice Department “has given our district the necessary resources -- including 10 additional prosecutor positions plus at least five Department of Defense attorneys -- to prosecute all of these crimes.”  She said the number of smuggling cases prosecuted there is on track to go up this year.  Still, there are signs that border authorities are seeking to prosecute drug smugglers in state courts instead, even though the possible sentences typically are harsher in the federal system.

The District Attorney’s office in San Diego said Friday that the number of cases submitted to them by border authorities had more than doubled since the administration started its border crackdown.  Spokeswoman Tanya Sierra said Homeland Security agents referred 96 drug cases to the office between May 21 and June 21, compared to 47 over the same period last year.  Most of the cases involved more than a kilogram of drugs, Sierra said.

Meanwhile, the number of people charged in federal court has dropped since the start of the administration’s zero-tolerance push, said Reuben Cahn, the chief federal public defender in San Diego....

USA TODAY examined 2,598 written judgments in border-crossing cases filed in federal courts along the border since mid-May.  In nearly 70 percent of those cases, migrants pleaded guilty and immediately received a sentence of time served, meaning they would spend no additional time in jail.  Another 13 percent were sentenced to unsupervised probation, including a condition that they not illegally re-enter the United States.  In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted.

This newspaper analysis highlights just some ripple effects of any significant change in federal prosecutorial priorities: with more resources developed to federal immigration cases, there may be fewer federal drug cases brought; but more cases may be handed over to state authorities.  And, in various settings involving non-citizen subject, the results of state or federal prosecution may be impacted by the fact that deportation will follow any conviction.

June 25, 2018 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, June 24, 2018

Remarkable tale of how uncertain criminal laws and their enforcement can produce extraordinary punishment inequities

I understand concerns about the potential for sentencing disparities that can arise from broad judicial discretion, but I have always noticed how many significant inequities can result from many other aspects of criminal case processing.  In this recent post, I flagged this new remarkable series produced by Florida newspapers documenting how prosecutors are responsible for locking up defendants of different races for much different periods.  And this morning my local newspaper has this remarkable story, headlined "Two bath-salts prosecutions lead to far different results," reporting on two similar defendants in Ohio getting remarkably different outcomes: one walking free and the other sentenced to 35 years in prison!  Here are the details:

Both men operated retail stores within blocks of each other in the Short North area. Both were arrested in 2012 and charged with selling bath salts, a synthetic hallucinogen.  One walked free, his case dismissed by a Franklin County judge.  The other, whose case was assigned to a different judge, was convicted and sentenced to 35 years in prison, with no chance for parole....

For Soleiman Mobarak, the man sent to prison, “it’s just a matter of bad timing and bad luck,” said his attorney, Robert Behal. “Hopefully, our system is better than that, where it’s not a matter of luck whether you get 35 years or zero.”

At one point, Mobarak, 35, was set free. In July 2015, 13 months after he was sent to prison, the Franklin County Court of Appeals overturned his conviction.  A three-judge panel ruled that selling and possessing bath salts and other designer drugs known as controlled-substance analogs was not a crime in Ohio when undercover investigators purchased them from Mobarak at his East 5th Avenue convenience store in May, June and July 2012.

Common Pleas Judge Laurel Beatty Blunt had reached a similar conclusion when she dismissed a bath-salts case against Thomas C. Smith in February 2014.  The appeals court upheld Beatty Blunt’s ruling in December 2014.  Smith, 63, who owned three shops on North High Street, and Mobarak both were swept up in a sting operation conducted by the Franklin County Drug Task Force, which was targeting the sale of synthetic designer drugs.

In both cases, the appeals court found that controlled-substance analogs, including bath salts, didn’t become illegal until the Ohio legislature included them in the criminal drug-offense statutes through a bill that took effect Dec. 20, 2012.  The Franklin County Prosecutors Office appealed those decisions to the Ohio Supreme Court. 

The Supreme Court declined to hear the appeal of Smith’s case in October 2015, which put an end to any efforts to prosecute him....  But before the Supreme Court got around to making a decision on the Mobarak appeal, the 12th District Court of Appeals ruled in a Warren County case that controlled-substance analogs were illegal in Ohio as of October 2011.  When that ruling was appealed to the Supreme Court, the justices had two pending cases in which appeals courts had reached conflicting opinions about the issue.  The justices chose to hear the cases, and in December 2016 they agreed with the 12th District court — controlled-substance analogs were criminalized in October 2011, before the sales made by Mobarak and the Warren County defendant.

Franklin County prosecutors filed a motion asking the trial court to revoke Mobarak’s bond and return him prison to complete his sentence.  The judge who sentenced Mobarak, Pat Sheeran, had since retired. His replacement, Judge Jeffrey Brown, inherited the case. June 12, after months of court filings, Brown issued what appeared to be a reluctant ruling.  Twice in his 38-page decision, Brown wrote that he was “troubled” by Mobarak’s situation. “The court’s hands are tied, however,” by the Supreme Court ruling, he wrote. “This court has no authority to modify the sentence ... Mobarak must begin to serve the remainder of his sentence.”

Had the conflicting case from Warren County not intervened, the Supreme Court presumably would have declined to hear the Mobarak case, just as it had done with Smith, Behal said.  Mobarak, like Smith, would be a free man.  “The passage of time created disparate results, and that’s tough to take,” Behal said.

Prosecutor Ron O’Brien has a different view of the fates of the two defendants.  “It’s unfortunate that Smith evaded responsibility just because of timing, but that does not mean Mobarak should evade responsibility,” O’Brien said. “Mobarak shouldn’t benefit from what was a wrong decision from the beginning.  Everybody knew how bad bath salts were, including the people who were selling them.  They were just playing games with the classifications.  Luckily, the Supreme Court finally straightened it out.”

June 24, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, June 12, 2018

"Possession's not enough: Expunge all weed convictions"

Legal Marijuana Oregon Measure 91The title of this post is the headline of this recent editorial from the Newark Star-Ledger.  Regular readers likely know I take a shine to this opinion piece because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which call for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.  Here are excerpts from the editorial:

Even as New Jersey is poised to legalize marijuana, the cops are still arresting tens of thousands of people annually, mostly minorities, just for having a little pot. Many can't find work because of the stigma.

Jo Anne Zito was rejected for a job at Godiva chocolates because of a low-level marijuana possession charge, she told lawmakers last week. So, as we contemplate legalizing recreational weed, we need to ask: Does it make sense that people like her still won't be able TO get work at a candy store?

No. We can't legalize marijuana, yet continue to force them to "walk around with a scarlet letter," as Assemblywoman Annette Quijano (D-Union) put it. The answer is expungement. But the current debate is far too limited.

Quijano introduced a bill to allow those caught with a little pot to apply to have their records cleared; advocates argue they shouldn't have to initiate that onerous process, the state should do it automatically. None of this goes far enough.

We need to think big. We need to admit this was a mistake in the first place, and that a lot of decent people were caught up in the dragnet. So, sparing only those who possessed small amounts is really just a first step.

We need to expunge the records of those caught with more than just a little pot. And we need to expunge the records of low-level dealers as well, if a judge approves, as long as they didn't commit more serious crimes like selling to minors, carrying guns, or committing acts of violence.

Aside from cleaning these records, we need to release those currently imprisoned on such charges. Does it make sense to hold thousands of people behind bars for selling weed, while the government allows sales outside the prison walls?...

All states that have legalized pot have only done so for certain amounts. Anyone arrested for possessing more gets a ticket, rather than a criminal charge. Yet if our expungement policy is modeled to match, those previously charged with having any more pot can't get that wiped from their records. They will continue to be barred from employment, even as people who buy heaps of it after legalization are merely ticketed. That needs to be fixed. Expunging high-level dealing charges is likely impossible, for political reasons. But we should at least include intent to sell and lower level distribution and growing charges.

Granted, this is not without risk. A guy who pled down to a marijuana charge from money-laundering, for example, shouldn't get out of doing his time, or a criminal record. But we could include prosecutorial review, as a bill moving through California's legislature would. It requires the state to automatically dismiss any old marijuana charges, yet prosecutors would sift through the higher-level cases and contest them if necessary. California already allows many past pot charges to be dismissed or reduced based on a defendant's petition, although they might still surface if you apply for a government job.

Yes, it's a huge undertaking to expunge all these convictions retroactively, especially if our state does so without requiring a petition. But we derailed hundreds of thousands of lives with needless marijuana prosecutions, and nobody helped those people get jobs or find housing. Now we are saying it never should have happened. So let the state overcome the logistical hurdles, too.

Actually, with a little bit of advanced planning and the right infrastructure, it does not necessarily have to be a "huge undertaking" to expunge past marijuana convictions. Indeed, as noted in this post over at my marijuana blog, "Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program," private players are willing to help in various ways with this effort.

I have blogged a lot about this issue over at my Marijuana Law, Policy and Reform blog, and here is just a sampling of some recent postings:

June 12, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Sunday, June 10, 2018

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

The title of this post is the headline of this new Wall Street Journal article with this subtitle summarizing its contents: "Attorney general vowed to toughen federal enforcement of the drug, but he doesn’t have support from Trump or Congress." Here are excerpts: 

Attorney General Jeff Sessions vowed to use federal law to get tough on marijuana, announcing in January he was ending Obama-era protections for the nascent pot industry in states where it is legal. Six months into his mission, he is largely going it alone.

Mr. Sessions’ own prosecutors have yet to bring federal charges against pot businesses that are abiding by state law. And fellow Republicans in Congress, with support from President Donald Trump, are promoting several bills that would protect or even expand the legal pot trade.

As a result, Mr. Sessions, an unabashed drug warrior, has struggled to make his anti-marijuana agenda a reality, a notable contrast with the success he has had in toughening law-and-order policies in other criminal justice areas.

Marijuana advocates say Mr. Sessions’ approach, in seeking to spur a crackdown on the legal marijuana market, has largely backfired. It has catalyzed bipartisan support for research, they say, and for action to improve the young industry’s access to banks, which have been generally unwilling to accept proceeds from pot sales.

Underlining the pushback, Sen. Cory Gardner, (R., Colo.) on Thursday joined Sen. Elizabeth Warren (D., Mass.) in introducing a bill that essentially would allow states to pass their own marijuana laws without interference from the federal government. Mr. Trump on Friday reiterated his support for Mr. Gardner, saying “I know exactly what he’s doing, we’re looking at it, but I probably will end up supporting that, yes.”...

In an unusual move by a Republican senator against his own party’s attorney general, Mr. Gardner blocked nominees for Justice Department jobs after Mr. Sessions announced he was undoing the Obama administration’s approach. Mr. Gardner stood down after receiving assurances that Mr. Trump would support protections for pot-legal states like Colorado, essentially undermining Mr. Sessions on the issue. “If they’ve voted to have a legal industry, then it would allow them to continue forward without violating any federal law,” Mr. Gardner said of the bill he co-authored with Ms. Warren.

House Republicans are also supporting a number of other marijuana-related measures. Rep. Matt Gaetz (R., Fla.) is pushing his colleagues to allow more marijuana research, which he hopes will pave the way to rescheduling pot—that is, categorizing it with less dangerous drugs on the Drug Enforcement Administration’s list of illicit substances.

Supporters of relaxing marijuana drug laws cheer the recent developments. “It was terrific,” said Don Murphy, director of federal policy for the Marijuana Policy Project, said of Mr. Sessions’ threat to the industry. “It moved this issue to a burner.” Pot foes caution it is too soon to judge the impact of Mr. Sessions’ changes. “It’s not a win for Jeff Sessions, but at the end of the day he still directs the department and could have the DEA close marijuana businesses,” said Kevin Sabet, president and CEO of the antipot group Smart Approaches to Marijuana.

Mr. Sessions’ January marijuana policy left federal prosecutors to decide what resources to devote to marijuana crimes, stirring fear among dispensary owners that raids and arrests were imminent. Instead, many U.S. attorneys continued to use their limited manpower to target unusually brazen marijuana operations that are also illegal under state law, such as sprawling marijuana growers on federal lands or gangs that peddle pot along with other drugs.

Billy Williams, Oregon’s U.S. attorney, for example, is targeting the trafficking of marijuana across state lines, organized crime and businesses that supply pot to minors. This in many ways resembles the policy that prevailed under the Obama administration, which urged states to tightly regulate marijuana and keep it from crossing state lines to avoid federal scrutiny. “I’m not making any blanket statements that we wouldn’t prosecute anyone,” Mr. Williams said. “It’s a case-by-case basis.”

Colorado’s U.S. attorney, Bob Troyer, is aggressively prosecuting drug traffickers who grow pot on federal lands, which is against both state and federal law. But his office hasn’t brought charges against dispensaries that comply with the state’s regulations. “We never would give anyone immunity for violating federal law,” Mr. Troyer said. “As those threats evolve and change, something else could rise to the top priority level.”

All the particulars of these stories should be familiar to regular readers of my Marijuana Law, Policy and Reform blog, and here are just a few of many recent posts providing more of those particulars:

June 10, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Wednesday, June 06, 2018

Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

Only a week after an in-person meeting with Prez Trump, Kim Kardashian West can and should be credited with getting President Donald Trump to do something bold and consequential with his clemency power.  This official White House statement explains:

Today, President Donald J. Trump granted a commutation to Alice Marie Johnson, a 63-year-old great-grandmother who has served almost 22 years in Federal prison for a first-time criminal offense.

Ms. Johnson has accepted responsibility for her past behavior and has been a model prisoner over the past two decades.  Despite receiving a life sentence, Alice worked hard to rehabilitate herself in prison, and act as a mentor to her fellow inmates.  Her Warden, Case Manager, and Vocational Training Instructor have all written letters in support of her clemency.  According to her Warden, Arcala Washington-Adduci, “since [Ms. Johnson’s] arrival at this institution, she has exhibited outstanding and exemplary work ethic. She is considered to be a model inmate who is willing to go above and beyond in all work tasks.”

While this Administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance.

I give Prez Trump a lot of credit for now moving beyond seemingly politically-motivated clemencies on to seemingly celebrity-motivated clemencies.  Excitingly, this CNN report today, headlined "Exclusive: Trump considers dozens of new pardons," reports that the Trump Administration "has prepared the pardoning paperwork for at least 30 people," which means we might soon get a lot more than just political-celebrity-buzz-worthy grants. 

As we anticipate even more clemency action, I hope someone makes sure to tell Prez Trump that he is now still 1713 commutations (including 567 LWOP sentences) behind President Barack Obama's modern records.  As this accounting highlights, Prez Obama, after a slow start, became the modern pace setter for federal clemency.  Here is hoping that Prez Trump will look to break Prez Obama's record.

Especially amusing among the stories covering all these clemency developments is this new Splinter piece (which predates the grant to Ms. Johnson).  It is titled "Donald Trump is Reportedly Torn Between Kim Kardashian and John Kelly," and it starts this way:

Picture if you will a befuddled Donald Trump. On one shoulder is a tiny Kim Kardashian angel. A tiny John Kelly devil is perched on the other. Both Kelly and Kardashian begin whispering their advice into the president’s ears.

That, essentially, is what is apparently taking place at the White House, as Trump mulls a pardon for 63-year-old Alice Johnson—a great-grandmother currently serving out a life sentence in prison for a non-violent drug-related conviction—following Kardashian’s high profile oval office visit in late May.

Oh how I wish I had the computer graphics skills to turn this imagined Kimme/Kelly shoulder debate into the gif that keeps on giving, especially now that we know how it turned out.

A few of many recent related posts about Trumpian clemency activity:

June 6, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Monday, June 04, 2018

Many hundreds of federal prisoners surely thrilled by Hughes, but thousands surely disappointed by Koons

As I mentioned in this post a few months ago around the time of SCOTUS oral argument, a lot of federal prisoners had a lot of interest in the two sentence modification cases on the SCOTUS docket.  Now that we have decisions in the sentence modification cases of Hughes and Koons (basics here), a bit of (too) simple accounting seems in order.

Helpfully, Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines reports that 781 prisoners have been denied a sentence reduction "because of binding plea" (the issue in Hughes) and that 3070 prisoners have been denied a sentence reduction because "mandatory minimum controls sentence."  Though these numbers are not the full universe of who might be impacted by these rulings, it does suggest that, speaking quantitatively, these rulings were a bigger win for federal prosecutors than for federal defendants.

Prior related post:

June 4, 2018 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Supreme Court delivers split decision for federal defendants in sentence modification cases of Hughes and Koons

Though the Supreme Court's ruling today about wedding cakes is sure to be what is most remembered from the first set of June 2018 opinions, the Court gave sentencing fans a lot to review with opinions in Hughes v. United States and Koons v. United StatesThe opinion in Hughes v. United States, No. 17–155 (S. Ct. June 4, 2018) (available here), will be a disappointment to some SCOTUS-watchers because the Court avoided addressing the Marks rule concerning fractured opinions.  But Hughes will not be a disappointment those sentencing fans who will be excited to see that Justice Gorsuch joined a majority opinion authored by Justice Kennedy in favor of a broad interpretation of who is eligible for sentence modification under retroactive guideline reductions. The opinion in Koons v. United States, No. 17- 5716 (S. Ct. June 4, 2018) (available here), was a unanimous opinoin authored by Justice Alito, which informed readers likely know means it federal prosecutors prevailed.

Here are some key sentences from the Hughes majority:

To resolve the uncertainty that resulted from this Court’s Opinion of the Court divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement....

This interpretation furthers §3582(c)(2)’s purpose, as well as the broader purposes of the Sentencing Reform Act.  “The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences.” Freeman, 564 U.S., at 533. “Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes [is] too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.” Ibid.  And there is no reason a defendant’s eligibility for relief should turn on the form of his plea agreement.

Here is the start of the unanimous (and very short) Koons opinion:

Under 18 U. S. C. §3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission.  The five petitioners in today’s case claim to be eligible under this provision.  They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders.  We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for §3582(c)(2) sentence reductions.

June 4, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, June 02, 2018

Lamenting how federal supervised release operates and suggesting reforms

Jacob Schuman, a federal public defender, has this extended New Republic piece headlined "America’s Shadow Criminal Justice System" detailing problems with how federal supervised release operates. I recommend the piece in full, and here are excerpts:

In the federal criminal justice system, prison is just the beginning of punishment. After prison comes “supervised release,” a set of obligations and restrictions governing an ex-con’s day-to-day schedule, employment, residence, and relationships.

In the best-case scenario, two-thirds of people successfully complete their term of supervised release....  As a federal public defender, I see the remaining one-third of cases—the worst-case scenarios where people violate their supervised release and get sent back to prison for up to five years. In a recent case, I represented a first-time offender who flawlessly completed two years of a five-year term of supervision.  But after he got into a relationship with the wrong person and started using opioids, he was reported by his probation officer, arrested, and held in prison for seven months.  After a failed attempt at rehab, his probation officer reported him again, and the judge sentenced him to 18 months’ imprisonment for violating his release by failing to achieve recovery. He’s now serving that sentence in a maximum-security prison, where no addiction treatment is available.

Improving this system depends on Congress, which has now taken on the worthy task of prison reform. Recently, the House of Representatives passed the First Step Act, a bill that makes it easier for inmates to earn early release and expands their access to job training and education. The proposal won an impressively bipartisan 360-59 vote and the support of the White House.  While the FSA makes good changes, reform will be incomplete unless it also addresses supervised release, a web of restrictions that ensnares many former prisoners, making successful reentry to society more difficult, not less....

The data show that this system is incredibly strict, and that its reach is vast.  Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months.  By 2010, more than 10,000 federal inmates were locked up for violating their supervised release. The supervision costs the federal government $400 million annually (not including the cost of incarcerating people for violations)....

Created by the Sentencing Reform Act of 1984, supervised release was supposed to reduce the monitoring of former prisoners.  Under the old “parole” system, inmates could earn early release from prison, but then had to serve the rest of their sentences in the community, subject to a parole officer’s supervision.  The SRA abolished parole and instead gave judges the option of imposing supervised release only on those defendants who needed extra support to “ease the[ir] … transition into the community.” The idea was that people would spend more of their time in prison, but would also receive less supervision after their release. Yet as the political winds shifted, Congress gradually made supervised release more expansive and more punitive.  Federal judges now impose supervised release in 99 percent of qualifying cases, and the number of people under supervision has increased five-fold.

Over the past 30 years, supervised release has transformed into a shadow criminal justice system that both reflects and perpetuates racial inequality.  In her book, The New Jim Crow, Professor Michelle Alexander examined how restrictions on former inmates, the majority of whom are Black or Hispanic, put them “at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else.”  This inequality continues into the courthouse, as unlike most defendants, people accused of violating the terms of their supervised release do not enjoy the rights to a speedy trial, a jury, confrontation of adverse witnesses, or proof beyond a reasonable doubt.  The upshot is that in the federal system alone, over 100,000 men and women are now subject to arrest for minor infractions and to imprisonment without the protections of the Bill of Rights....

Reforming this system will not be easy, but there are a few good places to start:

First, Congress should return to its original goal of reducing post-release supervision of former inmates by limiting supervised release only to those defendants who need it most and by reducing the punishments for violations.

Second, both Congress and the courts should ensure that people facing revocation of their supervised release receive all the fundamental protections promised by the Bill of Rights, including the right to a jury, to a speedy hearing, to cross-examine adverse witnesses, and to be proved guilty beyond a reasonable doubt.

Finally, judges should stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent.  To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.

Supporters of the First Step Act say their goal is “to control corrections spending, manage the prison population, provide educational and vocational training to inmates so they can successfully reenter society once released, and reduce recidivism.” To achieve this admirable purpose, reforming the nation’s prisons is indeed only the first step. Congress must also look beyond prison walls and fix our broken supervised-release system.

June 2, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision | Permalink | Comments (2)

Tuesday, May 29, 2018

The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

Matthew_charles-_march_2018_outside_wpln_1Last year I wrote an article in this special issue of the journal Federal Probation in which I explained why I believe the federal sentencing system has been disserved by the complete abolition of parole.  I have been thinking about that article in conjunction with the story that blew up my twitter feed over the weekend, the story of Matthew Charles described in this Nashville Public Radio piece.  Here are excerpts from a story that should be read in full:

It looks like a party — but Charles isn’t leaving for a big new job, or trying his luck in a new city. He’s going to prison. To finish out a 35-year term for selling crack to an informant in the 90’s.

Charles had already served 21 years before his sentence was cut short as a result of crack guideline changes passed by the Obama administration. But the U.S. Attorney’s office appealed his release on the grounds that Charles was legally considered a “career offender” due to a prior stint in state prison. They said the retroactive change in the law did not apply to him — and a Court of Appeals agreed.

“He’s rebuilt his life and now they’re coming to snatch it,” says "Wolf", who met Charles at a halfway house in 2016. They’ve volunteered together almost every Saturday since, long after fulfilling their community service requirements.  Wolf is talking to John Hairston, an old friend of Charles’ who flew in from Houston.  They’ve seen each other twice in over two decades — but for years, they wrote each other letters.  “The whole thing pisses me off to be honest,” he says, partly to Wolf and partly to the group of guests seated at another table across the lawn, who're listening intently and shaking their heads. “But it underscores how big a need there is for some reform in the justice system. I don’t care what they say.”

Since his release in 2016, Charles has held a steady job. He volunteers every Saturday, has reconnected with his family, and started a serious relationship. But really, his rehabilitation started years prior.

In prison, he took college classes and correspondence courses, he taught a GED program and became a law clerk. With his training, he helped other incarcerated men understand the judicial system long after their public defenders moved on to the next case.

Charles kept the secrets of those who were illiterate so they wouldn’t face ridicule or harassment — he read them letters from the court and drafted filings for them in the library. He organized bible studies and counseled newcomers. Two decades in federal insitututions — from maximum to low security — without a single disciplinary infraction.

Those that know Charles say they can’t understand why the justice system won’t recognize his rehabilitation. But the federal Bureau of Prisons did away with parole and most "good behavior" incentives years ago — even the best behaved must serve out the majority of their term.

Charles says the whole situation feels surreal. "I'm so tired” he says, after his hearing is postponed for the second time. “I am beyond tired. I always say to myself and others, ‘when is enough going to be enough?’”

Last time Charles faced time in prison, he was a drug dealer in his 20’s. At his sentencing in December 1996, a federal judge called Charles “a danger to society who should simply be off the streets.” Charles doesn’t dispute that. Until then, his entire life was embroiled in chaos....

Now in his 50’s, Charles has the support of friends and his community — and even the judge who ordered him back to prison. Everything is different. And yet, he says, nothing's changed.

On March 28, in a courtroom filled with more than two dozen of Charles’ friends, coworkers and loved ones, Judge Aleta Trauger called Charles’ case “sad” and commended his “exemplary rehabilitation.” But, she added that “her hands were tied” and reimposed his original sentence. She gave him 45 days to get his affairs in order.

The ruling from the Sixth Circuit explaining why Charles' sentencing reduction was improper is available at this link. It makes for an interesting read, as it notes that back in 1996 Charles' "recommended guidelines range [was] 360 months to life, but [the sentencing court] varied upward and imposed a 420-month sentence based on Charles’ background and misconduct." (I highlight this line because it itself reflects how the passage of time distorts reality: the original sentencing court did not quite "vary" upward because the concept of a "variance" did not exist prior to the 2005 Booker decision.) 

The initial decision to impose a prison sentence of 35 years rather than just 30 years on Charles may have made perfect sense circa 1996.  As explained by the Sixth Circuit, the district court had to consider "Charles’ many prior offenses: kidnapping a woman on two consecutive days 'for the purpose of terrorizing her'; burglarizing a home; and fleeing from a police interrogation,
shooting a man in the head, and attempting to run off in the victim’s car."  But, obviously, Charles is now a much different man than the man he was when committing all these prior offenses.  But, just as obviously, modern federal sentencing law presents no way to give effect to changed realities because parole and other like mechanisms were vanquished through the Sentencing Reform Act of 1984.

I am a strong supporter of the FIRST STEP Act in part because it includes some parole-like features to enable the early release of offenders who have demonstrated rehabilitation potential in various ways.  (In my Federal Probation article, I describe certain prison reform efforts by Congress as a kind of "parole light.")  But I continue to think the federal system would be even better served by considering a more general return of parole, at least for sentences of a decade or longer, or at least considering the kind of second-look resentencing provisions (allowing judicial modification after serving 15 years of prison sentence) that have been put forward in the new American Law Institute's revised Modern Penal Code sentencing provisions (discussed here and here by leading academics).

May 29, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (22)

Sunday, May 27, 2018

Examining thoughtfully modern trend to prosecute overdose deaths as homicides

The New York Times has this lengthy new article headline "They Shared Drugs. Someone Died. Does That Make Them Killers?".  The subheadline highlights the basic theme of the piece: "Prosecutors are increasingly treating overdose deaths as homicides, but they aren’t just going after dealers.  Friends, family and fellow users are going to prison."  To its credit, the Times here tried to dig into qualitative and quantitative stories here, and I recommend this piece in full.  Regular readers know that I have lamented, such as in prior posts here and here, that reporting on the decision to use homicide laws in overdose cases often fails to note that many states punish unintentional homicide less severely than the feds punish basic drug dealing.  Though the Times fails in this regard as well, it still provides the most thoughtful account of what surrounds these cases.  Here are excerpts:

As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction.

Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.

Overdose prosecutions, they say, are simply one tool in a box that should include prevention and treatment. But there is no consensus on their purpose. Some believe they will reduce the flow of drugs into their communities, deter drug use or help those with addiction “hit bottom.” To others, the cases are not meant to achieve public policy goals, but as a balm for grieving families or punishment for a callous act. “I look at it in a real micro way,” said Pete Orput, the chief prosecutor in Washington County outside Minneapolis. “You owe me for that dead kid.”

Who owes whom for what is less clear in the case of the Malcolm family in Breckenridge, Colo., where Michael Malcolm’s younger son was charged in the overdose death of his older brother, with whom he shared drugs purchased on the internet. The cost of prosecution and incarceration, Mr. Malcolm said, would have been better spent on addiction treatment that the family could not afford. “It’s kind of like blaming the leaves on the tree, you know?” he said. “What about the roots?”

In 15 states where data was available, The New York Times found more than 1,000 prosecutions or arrests in accidental overdose deaths since 2015. Between 2015 and 2017, the number of cases nearly doubled. Dozens more cases were documented in news reports. In all, overdose prosecutions were found in 36 states, with charges ranging from involuntary manslaughter to first-degree murder. In Minnesota, the number of such cases — sometimes referred to as “murder by overdose” — quadrupled over a decade. Pennsylvania went from 4 cases in 2011 to 171 last year after making it easier to prosecute....

Many of those convicted are serving hard time: A Long Island woman whose best friend texted her from a business trip asking for heroin was sentenced to six years after he died taking the drugs she sent him. A former pipe fitter in Minnesota who shot speedballs with a mother of three got 11 years. A Louisiana man who injected his fiancée — both were addicted, his lawyer said — got life without parole....

The concept of overdose prosecutions took hold after the cocaine-related death in 1986 of Len Bias, the college basketball star, two days after he was drafted by the Boston Celtics. A friend, who called 911 when Mr. Bias collapsed, was accused of providing the cocaine, but was acquitted. Soon after, states began passing so-called Len Bias or “drug delivery resulting in death” laws. Louisiana made it second-degree murder. Pennsylvania created a crime punishable by up to 40 years in prison. Congress passed the sweeping 1986 Anti-Drug Abuse Act, which included a mandatory minimum sentence of 20 years for federal cases in which drugs resulted in death or serious injury.

The Len Bias laws were supposed to go after drug dealers — “greed-soaked mutants,” Howell Heflin of Alabama called them on the Senate floor. But the role of dealer is far less clear cut than lawmakers envisioned. The legal definition of drug dealing, or “distribution,” typically covers behavior that is common for even casual users, including sharing, giving drugs away or getting reimbursed for a buy. Under complicity laws, helping to arrange a deal can be treated the same as dealing....

Despite the high cost of imprisonment — $33,000 a year on average, compared with roughly $5,000 to $7,000 for treating addiction with methadone — new Len Bias laws have begun to appear. Delaware enacted one in 2016, and West Virginia did so last year. In Rhode Island, Attorney General Peter Kilmartin has proposed a mandatory life sentence....

In order to gain a better sense of where defendants fit on the user-dealer continuum, The Times looked to Pennsylvania, where overdose prosecutions have soared since a change in the law in 2011 made it unnecessary to prove that the accused had malice toward the victim. The Times examined drug-related death cases filed in criminal court in the first half of last year — 82 cases in all, with 80 defendants. At least 59 of the accused were drug users themselves, according to police reports, court filings and interviews with law enforcement officials and defense lawyers. Roughly half had a relationship with the victim other than that of dealer. That group included six boyfriends, one girlfriend, a cousin, a brother and a son. A few of those charged had tried to save the victims. (Good Samaritan laws protect those who call for help from drug possession charges, but generally not homicide charges.)...

Overdose prosecutions picked up steam under the Obama administration. In 2015, the National Heroin Task Force recommended that cases against heroin dealers whose drugs proved fatal should be prioritized for three reasons: the product might be particularly potent, the prosecutions would serve as a deterrent, and the attention would educate the public about the “severe harm caused by heroin.”...

Even hard-liners like John Walters, the director of the White House Office of National Drug Control Policy under President George W. Bush, question the use of overdose homicide prosecutions without more systematic proof that they reduce drug use and emergency room visits. “In the absence of that, this is all gestures,” Mr. Walters said.

But many law enforcement officers hope that the cases act as a deterrent. When five people overdosed in two months in Twin Lakes, Wis. (population 6,000), the police charged 10 with reckless homicide. “We kind of want to put a bubble around our community and say we don’t — we’re not going to accept this here,” said Adam Grosz, the chief of police. But one of his detectives, Katie Hall, said that the arrests had little effect on supply and demand: “If we can take one off, well, then they just go to the next one.”

Paradoxically, the punitive approach to overdoses is underpinned by the same rationale as the push to treat addiction as a public health issue. In the prosecutorial worldview, a criminal investigation dignifies victims by treating their deaths as crimes instead of sad inevitabilities. “The analogy for me is the dead prostitute,” Mr. Orput said. “You know, years ago, the cop would look and go, ‘Well, that’s what happens,’ and that’s what they’d say with the junkie: ‘That’s why we don’t do drugs.’”

Some of many prior related posts:

May 27, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Sunday, May 20, 2018

US District Judge Bennett explains why meth sentencing guidelines are wrong to treat "drug purity [as] a proxy for culpability"

Long-time readers know that US District Judge Mark Bennett has long made his post-Booker mark with thoughtful opinion explaining why various guidelines ought not merit full respect in light of the purposes of sentencing set forth in 18 USC § 3553(a). Judge Bennett's latest important sentencing work, which a helpful reader made sure I did not miss, comes in US v. Nawanna, No. CR 17-4019-MWB (D. Iowa May 1, 2018) (available here). Like so many of Judge Bennett's opinions, this latest ruling is a must-read for all who follow the federal sentencing system, and it starts and ends this way:

The United States Sentencing Guidelines differentiate between methamphetamine mixture and actual (pure) methamphetamine or "ice."  That difference is the primary basis for the defendant's motion for a downward variance.  Even though he is a first-time drug offender who has never been in prison, he argues that he faces a "breathtakingly high" Guidelines sentencing range of 360 months to life, where the methamphetamine at issue was treated as actual (pure) methamphetamine or ice.  He argues that the harsh methamphetamine Guidelines overstate his culpability and should be rejected on policy grounds.  Specifically, his argument, of first impression for me, is that the methamphetamine Guidelines are based on a flawed premise, set out in U.S.S.G. § 2D1.1, cmt. n.27(C), that drug purity is a proxy for culpability.

The prosecution responds that, although I am free to place whatever weight I wish on the various advisory Guidelines, the defendant's advisory Guidelines sentencing range is appropriate in this case, because it reflects the dangerous role the defendant played in dealing pure methamphetamine . Thus, this case requires me, once again, to consider the question of the merits of the advisory Guidelines sentencing range for a defendant convicted of methamphetamine offenses.  In United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013), I followed the lead of two other federal district judges by reducing a methamphetamine defendant's advisory Guidelines sentencing range by one third, on the basis of a policy disagreement with the methamphetamine Guidelines.  This sort of variance was for low level, non-violent, addict offenders.  This opinion, which supplements my rationale on the record at the defendant's sentencing hearing, explains why I find that a similar reduction, based on a different calculation, is appropriate in this case....

Exercising my discretion to reject the advisory Guidelines sentencing range for methamphetamine offenses on the basis of a policy disagreement, I determined that a downward variance was appropriate in Nawanna's case.  The reasons for rejecting the methamphetamine Guidelines, here, were independent of the reasons for rejecting the methamphetamine Guidelines set out in my decision in Hayes.  Here, I concluded that the methamphetamine Guidelines are based on a flawed assumption that methamphetamine purity is a proxy for role in the offense, which, like Judge Robert C. Brack of the District of New Mexico, I find "is divorced from reality." Ibarra-Sandoval, 265 F. Supp. 3d at 1255.  Nawanna's advisory Guidelines sentencing range of 360 months to life would be greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a).  Instead, for the reasons stated, above, and on the record during Nawanna's sentencing hearing, Nawanna should be sentenced to 132 months incarceration.

May 20, 2018 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Saturday, May 12, 2018

"Predatory Public Finance and the Evolution of the War on Drugs"

The title of this post is the title of this new paper authored by Bruce Benson and Brian Meehan now available via SSRN. Here is the abstract:

US drug policy has a long history of providing revenue for federal, state, and local governments.  Before the War on Drugs, opium and cocaine were legal and medical professionals who prescribed these substances had to pay extra taxes to do so.  This chapter explains how, as the federal government began enforcing outright bans on drugs, law enforcement agencies took advantage of their newly acquired authority to profit.

Today, civil asset forfeiture related to drug crimes provides officers with incentives to use and abuse their authority and increase their revenue by making more drug arrests.  Key takeaways: (1) Drug policy has a long history of providing law enforcement with increased revenues and authority over time. (2) Law enforcement agencies may be targeting the crimes that present the opportunity to raise revenue for their departments rather than the most serious public safety threats.

May 12, 2018 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, May 03, 2018

"The Opioid Crisis and Federal Criminal Prosecution"

The title of this post is the title of this timely new article recently posted to SSRN authored by Rachel Rothberg and Kate Stith. Here are parts of its introduction:

An opioid crisis has swept the United States, ravaging communities across the country. In this Article we examine how federal law enforcement has responded to the crisis, both nationally and in a variety of locales.  We focus in depth, however, on federal investigators and prosecutors in the District of Connecticut, where the epidemic has hit hard....

What role can criminal law — and those who enforce it — play in combatting the opioid crisis?  The Connecticut U.S. Attorney’s Office’s shift in policy represents just one of many federal law enforcement reactions to alarming increases in opioid abuse and overdose deaths.  As opioid users’ tolerance increases and their access to prescription pills dwindle, they often transition to cheaper heroin, and then again to the more powerful synthetic opioids — sometimes unwittingly.  In general, law enforcement has struggled to keep up with the epidemic and the opioid market’s evolving characteristics.

In Part II of this Article we provide an overview of the nationwide, interagency efforts initiated by the Department of Justice in Washington, D.C.  In Part III, we briefly survey a number of strategies pursued by various U.S. Attorney’s Offices.  There are ninety-three U.S. Attorney’s Offices in the United States, and although all of them are part of the Department of Justice, each one is semi-autonomous in deciding which cases to investigate and prosecute.

Then, in Part IV, we narrow our focus to the federal prosecutorial efforts of the U.S. Attorney’s Office for the District of Connecticut.  We focus on the Office’s two main strategies— (1) charging the supplier of an illicit substance resulting in death with the crime of drug distribution; and (2) educating the community, particularly high-school students, about opioid usage — and discuss whether they have implications for the national role of federal law enforcement.  Lastly, in Part V, we address what more might be needed from federal law enforcement going forward to protect communities nationwide from the devastation wrought by opioid proliferation.

May 3, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, May 02, 2018

Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?

Download (11)The question in the title of this post is not satire, but a serious inquiry based on this extended Mic report headlined "Kim Kardashian West has talked to White House about pardoning nonviolent drug offender."  Here are excerpts from the report:

Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense.

The telephone calls, according to a source with knowledge of the conversations, have taken place over the course of the past several months and have picked up in intensity over the last several days.

A representative for Kardashian West confirmed to Mic that she has been in communication with the White House and is working to bring Johnson’s case to the president’s desk. The source with knowledge of the conversations also told Mic that Johnson’s case has been reviewed by White House attorneys.

Johnson, who has been in federal prison since October 1996, has captured international attention from criminal reform activists — and Kardashian West.  Kardashian West first learned about Johnson’s case from a Mic video [available here] published in October.  Kardashian West shared it on Twitter, and the video has since been viewed more than 8 million times.

Shortly after, Kardashian West became involved in trying to free Johnson, who was convicted for her role facilitating communications in a drug trafficking case. In November, Kardashian West enlisted a team of lawyers, including her Los Angeles-based attorney Shawn Holley, to advocate for Johnson’s release.

The two women also have communicated, with Johnson expressing her gratitude toward Kardashian West for her support in a November letter. Still, it appears the only clear path for Johnson’s release would be a presidential pardon or clemency — which could come at odds with Trump’s recent proposal to impose the death penalty for certain drug dealers.

In her October op-ed, Johnson told Mic she became involved in drug trafficking as a way to make ends meet following a particularly rough period in her life: She lost her job at FedEx, where she had worked for 10 years, due to a gambling addiction; she got divorced; and then her youngest son died in a motorcycle accident. “I felt like a failure,” Johnson said. “I went into a complete panic and out of desperation, I made one of the worst decisions of my life to make some quick money. I became involved in a drug conspiracy.”

Johnson was arrested and sentenced to life in prison, with no opportunity for parole. As of May 2018, she has spent over two decades behind bars. For criminal justice reform advocates, Johnson’s case serves as a glaring example of why America’s sentencing laws need reform.

Johnson was one of six prisoners featured in the ACLU’s campaign to end mass incarceration. She has also participated in Skype conversations at top universities including Yale and New York University, as well as at companies such as Google, where Mic first became aware of her story. One of Johnson’s daughters, Tretessa Johnson, told Mic in a video in November that her mother is remorseful and has been a model prisoner during her time behind bars....

President Barack Obama granted clemency to 231 individuals in December 2016, many of whom had similar drug-related charges. Johnson was not one of them. “When the criteria came out for clemency, I thought for sure — in fact, I was certain that I’d met and exceeded all of the criteria,” Johnson told Mic. “Oh my goodness, I had so much support.”

Now, her hope rests with Trump. News of Kushner and Kardashian West’s conversations comes on the heels of multiple reports in recent months that Kushner has been working to pass a bipartisan criminal justice reform bill in Congress, co-sponsored by Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), among others.

For a lot more information about Alice Marie Johnson, check out all the materials assembled here at the CANDO website where she is listed #1 on this list of Top 25 Women who deserve clemency from federal prison.

May 2, 2018 in Celebrity sentencings, Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

Wednesday, April 25, 2018

"6 Months Since Trump Declared an Opioid Emergency, What's Changed?" ... other than AG Sessions "strongly" encouraging capital prosecutions?

The quoted portion of the title of this post is the headline of this notable new Governing article, which provides this answer via a subheadline: "Some health officials say nothing. Members of Congress, meanwhile, are taking matters of money for the drug crisis into their own hands." Here are excerpts:

On Oct. 26 last year, President Donald Trump declared the opioid epidemic -- which took more than 64,000 lives in 2016 -- a national emergency.  More specifically, he declared it a public health emergency, which can be used to ease some federal rules for the U.S. Department of Health and Human Services (HHS) to, among other things, make more people eligible for Medicaid or dispatch more medical professionals to the areas hit hardest by the drug crisis.

The declaration has already been extended twice, most recently on Tuesday.  But health policy experts say it's unclear what -- if any -- HHS rules have been waived since the declaration.  Moreover, Trump did not directly offer state and local governments more money to combat the drug crisis.  Because of this, some say the declaration has been nothing more than an empty promise.  "We’ve seen no effect here in Baltimore from the emergency [declaration]," says Leana Wen, the city's health commissioner. "We could save so many more lives if we had more resources. We don’t need any more rhetoric."  Wen worked with members of Congress to take matters of money into their own hands....

There are at least seven other bills floating around Congress to address the opioid epidemic. The most comprehensive with the most bipartisan support is the Comprehensive Addiction and Recovery Act (CARA) 2.0. It offers $1 billion more than current federal funding for treatment and prevention programs and would mandate a three-day limit for first-time opioid prescriptions.

Frustration over federal inaction is even boiling over within the president's own party.  Before Trump traveled to New Hampshire to talk about opioids, the state's Republican governor, Chris Sununu, reportedly confronted White House officials about the lack of funding to back up the emergency declaration.  "The president cannot come to New Hampshire without a plan that has substance," Sununu told White House aides, according to CBS News.

Trump still gave his scheduled speech there in March to unveil new initiatives to fight the opioid epidemic.  He focused on cracking down on illegal immigration and drug dealers. Since then, Attorney General Jeff Sessions has directed federal prosecutors to seek the death penalty for some drug traffickers....

His focus on law-and-order tactics exasperated many health officials. "I'm deeply concerned with the focus on incarceration. It goes against what science says, which is that addiction is a disease.  We know that treatment works.  The war on drugs doesn't," says Wen.

The plan the White House released after Trump's New Hampshire speech did include several bipartisan, health-focused efforts to combat the crisis -- but most of the ideas weren't new and there were few specifics about how to pay for them.  Before the emergency declaration, Trump assembled an opioid commission to explore the best tactics the federal government could deploy to stem the tide of overdoses.  A final report was released in November, with some bipartisan recommendations, such as removing barriers to treatment and increasing access to drug courts that divert people struggling with addiction from jail.

But even those who worked on the commission's 138-page report have said that the administration has no plan to systematically address the epidemic.... There have been some encouraging signs, however, that the federal government is serious about addressing the opioid epidemic. The Trump administration has continued an Obama-era policy of approving waivers to let their Medicaid programs pay for addiction and mental health treatment in facilities larger than 16 beds -- which is normally prohibited under federal law. So far, the Trump administration has approved waivers from Indiana, New Jersey, Utah, Virginia and West Virginia. Five states -- Arizona, Illinois, Kentucky, Michigan and Wisconsin -- have pending waivers still.

And last month, Congress passed a federal spending bill that includes a $3.3 billion increase in funding for the opioid crisis. The $3.3 billion will go toward prevention, treatment and law enforcement activities across the Centers for Disease Control and Prevention (CDC), Substance Abuse and Mental Health Services Administration (SAMHSA), Department of Veterans Affairs and other entities that help state and local governments. Many health policy experts, however, argue that it still isn't enough to make a meaningful impact.  To put that in context, the federal budget for HIV care in 2017 was $32 billion.

The other part of the title of this post is a reminder that it was a full five weeks ago that AG Jeff Sessions issued a "Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions" (full text here) which "strongly encourage[d] federal prosecutors" bringing federal drug prosecutions to "include the pursuit of capital punishment in appropriate cases."  I keep wondering if and when we will see that memo having any real tangible impact.

Roughly speaking, federal prosecutors bring about 400 federal drug prosecutions per week, meaning that there have likely been around 2000 federal drug prosecutions since the AG issued his capital punishment memo.  Even if AG Sessions means by "strongly" encouraging capital prosecutions that only the very worst 0.1% of federal drug defendants should be subject to federal capital charges, we should perhaps have expected to have seen by now two federal drug defendants being subject to a federal capital indictment.  (I am inclined here to recall frequent statements by groups like NAUSAA that that federal system is focused only on "the most dangerous and serious drug traffickers." If this is true, perhaps AG Sessions thinks 1% or even 10% of federal drug prosecutions should include capital charges.  If so, we ought to already be seeing dozens of federal capital prosecutions by now.)

As of this writing, I am not aware of a single new capital drug case since the AG's March memo, though it is certainly possible that some are in the works and that is only a matter of time before we see a lot more federal capital cases.  I know I will be continuing to wonder if, when and how the capital prosecutions that AG Sessions has strongly encouraged will become a reality.

April 25, 2018 in Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (5)

Monday, April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The title of this post is the title of this new paper I have written for a forthcoming issue of the Federal Sentencing Reporter which is now available via SSRN.  Here is the abstract:

States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements.

Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.  Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.   This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.

Cross-posted at Marijuana Law, Policy & Reform.

April 23, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, April 22, 2018

SCOTUS to hear seemingly small sentencing case made slightly bigger by Government's advocate

On Monday afterneed the Supreme Court will hear oral argument in Chavez-Meza v. United States.  Here is the issue presented in the case (via SCOTUSblog):

Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

As this statement of the issue reveals, the Supreme Court likely was inclined to add this case to its docket in order to resolve a circuit split over just want amount of explanation is required when judges grant sentence modifications under 18 U.S.C. § 3582(c)(2).  But, it appears that only six months of a nine-year prison term is at issue in this case and, as Susan Klein explains via her SCOTUSblog argument preview, it seems unlikely that even a win for the defendant would be all that consequential for others:

I predict that whatever the Supreme Court does in this case will have little effect beyond amending future sentencing modification forms. A reversal would likely result in little more than a “ritualistic incantation” by the judge that she considered a specific Section 3553(a) factor, or that she considered a specific policy statement issued by the sentencing commission.

Of course, SCOTUS could always decide to use this case to talk up the importance of sentencing explanations, though I doubt even an opinion written with great ambition in this matter would have too much of an impact.  And still, though seemingly a small case, Chavez-Meza is getting an extra bit of attention because the Deputy Attorney General will be arguing the case on behalf of the feds.  This new Wall Street Journal article, headlined "Rosenstein Takes a Pause — to Argue a Case Before the Supreme Court," looks at this angle of the case.  (Last but not least, hard-core Breaking Bad fans might get a weird kick out of the fact that Adaucto Chavez-Meza "distributed methamphetamine in Albuquerque, New Mexico," though a bit later than when Walter White was supposedly cooking up the Blue Sky variety in that part of the world.)

April 22, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Friday, April 20, 2018

Because the calendar suggests I should, here is a round-up of some recent posts from Marijuana Law, Policy & Reform

It has been more than two months since I did a round-ups of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and this post will be on the second such round up in this space in 2018.  And it is a bit cliche to do this round-up on 4/20.  But because given all the recent activity in the marijuana law and policy universe, here are just some (of many) recent legal and policy highlights from MLP&R that sentencing fans might find worth checking out:

April 20, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Monday, April 16, 2018

Two notable recent sentencing commentaries on work ahead for Congress

Thehill-logo-bigIn recent months I have noticed lots of notable sentencing commentary in the publication The Hill.  And Friday The Hill published two sentencing commentaries of note. They are linked below with their first few paragraphs:

"Congress must act to fix our broken criminal justice system" by Reps. Cedric Richmond (D-LA.) & Mark Walker (R-N.C.):

Our criminal justice system is crumbling.  Over the last 40 years, our domestic incarceration rate has quadrupled, creating a crisis of more than 2 million people behind bars in the United States today.  Simultaneously, recidivism rates have grown or remained high across almost every identifiable demographic or cross section.  And yet, crime rates have steadily fallen.

This paradox exposes a simple fact: our criminal justice system is in desperate need of reform.  What’s more, almost everyone in Congress knows it. Passing significant reforms to our criminal justice system could bring relief to families and communities in every state, district and territory.

Over the past few weeks, at our respective retreats, members of Congress from both parties discussed our priorities.  We believe criminal justice reform needs to be on the top of that list.

Since arriving in Congress, we have seen increasing awareness, education, energy and interest in criminal justice reform, but, to date, we have not been able to enact necessary changes.  Senators have formed working groups.  The House Judiciary Committee passed strong, bipartisan legislation out of committee last year. But no tangible results.  That has to change.

"Reviving the war on drugs is exactly the wrong response to the opioid crisis" by Ames Grawert & James Cullen:

This week on Capitol Hill, lawmakers met to discuss a bill that would impose draconian mandatory minimum sentences on even minor crimes involving the synthetic opioid fentanyl.  The hearing follows news that the Trump administration will seek the death penalty for drug dealers, part of his overall “war on opioids.”

“You just can’t pass a law increasing punishment and expect the opioid crisis to go away,” Sen. Lindsey Graham (R-S.C.) appeared to acknowledge at the outset.  “But it’s a pretty good place to start.”

It’s not.  It’s a bad place to start.  This is the logic of mass incarceration, the instinct to always demand the harshest punishment possible. It animates the Trump administration and its Congressional allies on everything from drug policy to immigration.  And it doesn’t work.  Reform advocates can’t be lulled by the false promise of reform.  We need to fight back before we repeat the mistakes of the 1970s.

April 16, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Sunday, April 15, 2018

Another federal court reaction to federal sentencing realities of modern drug war

In this post a few weeks ago, I noted an interesting Seventh Circuit ruling which not only explored ineffective assistance of counsel in plea negotiations, but also highlighted how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.  That post generated a lot of thoughtful comments, leading me to think it worthwhile to spotlight another drug war sentencing tale with a different variation in the work of counsel and court.

Specifically, a couple of helpful readers sent me a notable sentencing memorandum and a recently unsealed sentencing opinion in US v. Smith, No. 6:17-cr-147-Orl-31KRS (M.D. Fla. Feb. 27, 2018). In this case, as explained by the sentencing judge, Judge Gregory Presnell, Tyrone Smith faced a huge increase in his sentence range under the career-offender guideline for two prior low-level cocaine sales:

Smith was arrested and charged in Count 2 of the Indictment with distribution of a mixture containing a detectable amount of carfentanil.  He pled guilty and appeared before me for sentencing.  The PSR (Doc. 80) scored defendant with a base of 24.  Subtracting two levels for his minor role in the offense and three levels for his acceptance of responsibility, his guideline score would be 19.  With a criminal history score of III, his suggested guideline sentence would be 37-46 months. But the prior state court offenses described above make defendant a career offender as defined by USSG 4B1.1.  Application of this enhancement increases defendant’s score from 19-III to 29-VI, resulting in a guideline range of 151-188 months, a 400% increase for selling $120 worth of cocaine ten years ago!

Running through the 3553(a) factors and noting the "growing chorus of federal judges who reject application of the career offender guideline in certain cases," Judge Presnell concluded "that a reasonable sentence in this case is 30 months, which constitutes a modest downward variance from the low end of defendant’s unenhanced guideline score."

I have provided here for downloading counsel's sentencing memorandum for Tyrone Smith as well as Judge Presnell's "Bench Sentencing Opinion":

Download Sentencing memorandum Final

Download Bench Sentencing Opinion

April 15, 2018 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, April 12, 2018

US Sentencing Commission adopts (mostly minor?) 2018 guideline amendments

As reported in this official press release, "The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy." Here are the substantive details:

At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.

Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).

The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.

The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j)....

At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.

The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for "court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.

As the press release also explains, these amendments "will be transmitted to Congress by May 1, 2018 [and if] Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018." A reader-friendly version of the amendments are available at this link.

As the title of this post suggest, I think most of the amendments here can and should be described as fairly minor, save for the reworking of of the treatment of synthetic drugs. But I would welcome input from those more informed on the particular about anything here that might be especially blogworthy.

April 12, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Wednesday, April 11, 2018

Could former House Speaker John Boehner become the first big drug dealer capitally charged by AG Jeff Sessions?

Boehner-gopThe question in the title of this post is my (tongue-in-cheek?) reaction to this news that former Speaker of the United States House of Representatives John Boehner and former Governor of the State of Massachusetts Bill Weld have joined the Board of Advisors of Acreage Holdings.  This company in this press release calls itself "one of the nation’s largest, multi-state actively-managed cannabis corporations" and on this webpage states that it has "cultivation, processing and dispensing operations across 11 states with plans to expand." 

What this really means, legally speaking, is astutely explained in this tweet by LawProf Alex Kreit: "Oh look, here’s the former speaker of the house publicly announcing that he’s joined a conspiracy to manufacture and distribute a schedule I controlled substance and commit federal drug crimes on an ongoing basis."  But, critically, Boehner is not merely announcing that his is not part of a massive drug conspiracy, he is also perhaps putting himself in position to be subject to the new push by Attorney General Jeff Sessions, discussed here, to "strongly encourage federal prosecutors to use" a federal statute that allows for pursuing the death penalty under 18 U.S.C. § 3591(b)(1) for persons guilty of "dealing in extremely large quantities of drugs." 

Of course, as Christopher Ingraham explained in this Washington Post piece a few weeks ago, a whole lot of marijuana is required to make one eligible for the death penalty under federal law: "there is a federal capital punishment on the books for large quantities of marijuana — a substance with no known lethal dose that is legal for recreational use in nine states plus the District. The threshold is huge — 60,000 kilograms, or 60,000 plants, enough to fill several shipping containers."  But, for a company — or should I say major drug conspiracy — like Acreage Holdings, this amount of marijuana may well be a regular part of regular business operations: 

The quantity-based capital punishment provision is of particular concern to state-legal marijuana businesses.  The plant remains illegal under federal law, regardless of what state laws say.  Aaron Smith, executive director of the National Cannabis Industry Association, a trade group, said in an email that “there are many state-licensed cannabis businesses cultivating 60,000 plants or more.”

Needless to say, I am not expecting John Boehner or Bill Weld to be charged with a federal capital crime or any crime anytime soon.  But I am expecting folks who read this post to better understand why existing federal marijuana prohibition laws garner so little respect and why I think anyone seriously committed to the rule of law ought to be advocating for at least some kind of federal reforms regardless of their particular policy views on particular state marijuana reforms.

April 11, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Wednesday, April 04, 2018

The intricate realities of the drug war on full display in recent Seventh Circuit ruling on ineffective assistance of counsel in plea negotiations

A helpful reader alerted me to an interesting panel ruling by the Seventh Circuit handed down yesterday in Brock-Miller v. US, No. 16-3050 (7th Cir. April 3, 2018) (available here). The reader rightly noted that this opinion provides a thorough discussion of ineffective assistance of counsel in plea negotiations before ordering the district court to hold a hearing to explore claims of deficient performance by the defendant's lawyer.  I also found remarkable the case's accounting of how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.

Specifically, as the panel opinion explains, LeeAnn Brock-Miller pleaded guilty, "pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute heroin [resulting in] the agreed-upon sentence of ten years’ imprisonment."   What did she do to get this decade-long sentence?  According to the opinion, she was driving with three other men (one of whom it seems was her husband) on a highway headed to purchase 54 grams of heroin in Chicago; and according to sentencing testimony: "this car trip was an isolated incident, where she agreed to give the others a ride in exchange for one gram of heroin for herself.  Brock-Miller had an extensive criminal history that corroborated her claim that she did not sell drugs but was an addict who simply bought drugs for personal consumption."

Problematically for Brock-Miller, (1) that lone car trip allowed the Government to claim she was part of a drug conspiracy to traffic more than a kilo of heroin, triggering a possible 10-year mandatory minimum, and (2) she had a prior Indiana conviction for “Unlawful Possession of Syringes or Needles” which the Government claimed was a predicate drug felony under 851 that doubled her potential mandatory minimum term to 20 years in federal prison(!).  With the feds threatening this big hammer, the defendant here understandably was amenable to her defense counsel's advocacy to accept a plea deal that called for "only" a 10-year sentence.

But as the Seventh Circuit goes on to explain, the defendant's prior Indiana conviction was not actually a qualifying predicate to double her applicable mandatory minimum and she had a reasonable trial argument that not foreseeable was the "full kilogram of heroin charged in the indictment [for] someone who joined the conspiracy at the very end, in a deal involving only 54 grams."  In other words, the defendant had a winning legal argument that her mandatory minimum should not have been doubled, and a viable argument that she should not be subject to any mandatory minimum term at all.  Luckily for the defendant, a Seventh Circuit panel helped figure this out and the apparent ineffectiveness of her counsel may allow her to get resentenced in a more fitting way.

But I must conclude by stressing the dark cloud that overwhelms any Brock-Miller silver lining: the very possibility that "an addict who simply bought drugs for personal consumption" could be threatened with a 20-year mandatory minimum federal prison term reveals how dysfunctional and morally bankrupt our federal sentencing laws can be.  And I am quite certain that LeeAnn Brock-Miller is not the first person nor the last person to be chewed up by these laws; indeed, sadly, there are many thousands that have come before her, and likely many thousands still to come.

April 4, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (21)

Are prisons and jail now, and should they be, our society's modern addiction treatment centers?

The question in the title of this post is prompted by this notable new article in Stateline headlined "Addiction Treatment, for Jails and Prisons, Gains Momentum."  Here are excerpts:

From the moment they are arrested, people with an addiction to heroin and prescription painkillers and those who are taking medications to beat their addictions face the prospect of painful opioid withdrawal.

At least a quarter of the people in U.S. prisons and jails are addicted to opioids. Those who are released rejoin their communities with dangerously reduced tolerance and nothing to blunt their drug cravings, making them highly susceptible to a deadly overdose.

But new scientific evidence and a recently announced federal investigation may soften prison officials’ long-held opposition to medication-assisted treatment.

Rhode Island is the only state that provides all three FDA-approved addiction medications, methadone, buprenorphine and a long-acting, injectable form of naltrexone known as Vivitrol, to all inmates. A recent study in the medical journal JAMA Psychiatry found that opioid overdose deaths dropped by nearly two-thirds among recently incarcerated people in the first year of a new program that screens and provides addiction medicines to all state inmates. According to the study by Brown University researchers, the program not only reduces overdose deaths after the inmates are released, but also increases the likelihood they will stay in treatment and avoid getting arrested again.

Meanwhile in Massachusetts, which doesn’t provide methadone or buprenorphine to inmates, the U.S. Department of Justice is investigating whether corrections officials are violating the Americans with Disabilities Act by forcing inmates who were taking those addiction medicines when they entered prison to stop taking them while incarcerated.

Massachusetts lawmakers are considering a corrections bill that would require the state’s prisons and jails to offer all three FDA-approved medications. A similar proposal is advancing in Connecticut, which has provided methadone to some inmates in some jails for six years. The bill there would expand the program to all medications for all inmates.

And at the federal level, President Donald Trump promised last month to screen every federal inmate — roughly 180,000 people — for opioid addiction and provide Vivitrol in residential treatment centers prior to release. Trump also called for more federal support for state, local and tribal drug courts to help provide “evidence-based treatment as an alternative to or in conjunction with incarceration, or as a condition of supervised release.”

Fewer than 1 percent of the more than 5,000 U.S. prisons and jails, housing more than 2 million inmates, allow access to the FDA-approved medication, even though medical societies, addiction experts and correctional health organizations support their use. Finding the money to fund correctional drug treatment programs is a challenge in many states. But research shows that the cost of providing addiction medications in correctional facilities is outweighed over time by savings in both future health care and incarceration costs....

Standing in the way are sheriffs and other prison officials, who argue that allowing treatment inside prisons with methadone or buprenorphine — both narcotics that can be abused — will lead to the drugs being diverted within the prison and possibly to illicit street markets.

In Barnstable County, Massachusetts, for example, Sheriff James Cummings said he would not allow buprenorphine to be dispensed in his jail because it is considered contraband. “We ruled out buprenorphine because it doesn’t work for the people we deal with,” Cummings said. “Inmates try to smuggle it into the facility every day. It’s a narcotic. They use it until they can get their next heroin fix so they don’t get sick and they sell it to get money to buy more heroin. It’s not a good fit.”

Instead, Barnstable in 2012 added Vivitrol to its re-entry program for opioid-addicted inmates who are scheduled to leave within the next two weeks. Cummings said the program has reduced overdose deaths and repeat offenses. In general, Vivitrol is an easier sell in most prisons and jails, said Andrew Klein, who runs a Justice Department program aimed at getting more drug treatment into correctional facilities. But it’s not the best medication for everyone, he said.

In fact, nearly all corrections officials reject the use of either methadone or buprenorphine behind prison walls. That’s despite a history of research showing both medicines are highly effective at eliminating cravings, preventing overdoses and keeping people in recovery from opioid addiction....

At least 1 in 5 incarcerated people are imprisoned because of drug charges, but in many states, even more inmates are addicted to heroin and other opioids. In Connecticut, for example, at least 30 percent of the state’s 14,000 inmates are addicted to opioids, according to Kathleen Maurer, the medical director for he state’s corrections department. Nationwide, a quarter of heroin addicts pass through the corrections system each year, according to a study in the Journal for Opioid Management....

Five states — Hawaii, New Jersey, New York, Vermont and Washington — offer both methadone and buprenorphine to some inmates at one or more prisons or jails. Only Rhode Island offers all three medications to all inmates in all of its prisons and jails.

April 4, 2018 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Wednesday, March 28, 2018

"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"

The title of this post is the title of this notable and timely new report from the US Sentencing Commission. Here is a summary of its coverage and findings from this USSC webpage:

The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.

In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.

Key Findings

The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".

Key findings of the Commission’s study are as follows:

  • The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

  • Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.

  • Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.

March 28, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7)

Monday, March 26, 2018

"The War on Drugs Breeds Crafty Traffickers"

The title of this post is the title of this notable new op-ed in the New York Times authored by Sanhoe Tree. I recommend the piece is full, and here are excerpts:

Politicians often escalate drug war rhetoric to show voters that they are doing something. But it is rare to ignore generations of lessons as President Trump did earlier this month when he announced his support for the execution of drug traffickers. This idea is insane. But the war on drugs has never made any sense to begin with.

Executing a few individual smugglers will do little to stop others because there is no high command of the international drug trade to target, no generals who can order a coordinated surrender of farmers, traffickers, money launderers, dealers or users.  The drug trade is diffuse and can span thousands of miles from producer to consumer. People enter the drug economy for all sorts of reasons — poverty, greed, addiction — and because they believe they will get away with it.  Most people do.  The death penalty only hurts the small portion of people who are caught (often themselves minorities and low-level mules).

Indeed, on the ground, the threat of execution will even help those who aren’t caught because they can charge an increased risk premium to the next person in the smuggling chain. The risk of capture and punishment increases as drugs move from farm to processing lab, traversing jungles, through cities, across oceans, past borders, distributed by dealers and purchased by consumers.  The greater the risk to smugglers in this chain, the more they can demand in payment....

An overreliance on intensive policing over the decades has also produced a rapid Darwinian evolution of the drug trade.  The people we have typically captured tend to be the ones who are dumb enough to get caught.  They may have violated operational security, bragged too much, lived conspicuous lifestyles or engaged in turf wars.  The ones we usually miss tend to be the most innovative, adaptable and cunning. We have picked off their clumsy competition for them and opened up that lucrative economic trafficking space to the most efficient organizations.  It is as though we have had a decades-long policy of selectively breeding supertraffickers and ensuring the “survival of the fittest.”

To support his case for executions, Mr. Trump cites draconian penalties in other countries. Iran has used the death penalty extensively in drug cases, but more than 2.8 million Iranians still consume illicit drugs.  Earlier this year, the Iranian government even repealed the use of executions in most drug cases which could spare up to 5,000 people on death row.

Mr. Trump often praises President Rodrigo Duterte’s brutal drug war in the Philippines, which has claimed 12,000 to 20,000 lives in mostly extrajudicial killings.  But there is little indication that drug use has actually decreased.  In fact, as the killings have increased, so too have the government’s drug use estimates.  What began as 1.8 million users at the beginning of 2016 grew to three million and later four million.  Last September, the Philippine Foreign Secretary, Alan Peter Cayetano, even raised that estimate to seven million. The higher numbers are likely inflated, but more killings do not appear to reduce the number of users.

Singapore notoriously refuses to publish reliable drug-use statistics, so there is no way to show whether executions have any measurable effect on drug consumption.  As Harm Reduction International pointed out, however, Singapore’s seizures for cannabis and methamphetamine increased 20 percent in 2016 while heroin seizures remained stable. Moreover, 80 percent of Singapore’s prisoners are incarcerated for drug-related offenses.  All of this suggests, Singapore’s famous panacea to solve the drug problem is not as miraculous as it seems....

Mr. Trump is not advancing a new strategy to deal with opioids.  It was President Clinton who put these death penalty statutes on the books as part of the 1994 crime bill, but they remain unused.  Mr. Trump and Attorney General Jeff Sessions are trying to change that.  They want to use those laws in racketeering cases and ones involving large quantities of drugs even though the Supreme Court has ruled that capital punishment should be reserved only for crimes resulting in death.

The Donald Trump of 2018 should take a lesson from the Donald Trump of 1990 when he told the Miami Herald: “We are losing badly the war on drugs. You have to legalize drugs to win that war.”

March 26, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, March 23, 2018

New spending bill includes a lot more money for Justice Department to fight drug war even harder

A helpful reader made sure that I did not miss the important criminal justice story within this week's budget drama.  Specifically, the new spending bill signed today, as detailed here, includes lots more money for the Department of Justice to hire a lot more agents and prosecutors to, presumably, bring a lot more federal drug cases:

TITLE II

DEPARTMENT OF JUSTICE

GENERAL ADMINISTRATION

SALARIES AND EXPENSES

This Act includes $114,000,000 for General Administration, Salaries and Expenses.

Opioid and heroin epidemic. -- The Act includes significant increases in law enforcement and grant resources for the Department of Justice (DOJ) to combat the rising threat to public health and safety from opioid, heroin and other drug trafficking and abuse. This includes a total of$446,500,000, an increase of $299,500,000 more than fiscal year 2017, in DOJ grant funding to help State and local communities respond to the opioid crisis.

Federal Law Enforcement and Prosecutors. -- The Act includes significant increases for DOJ Federal law enforcement and prosecution agencies which will help DOJ investigate and prosecute high priority cases, including those involving opioids, heroin, and other drug trafficking amongst other law enforcement priorities that were agreed upon by the Committees in this explanatory statement. The overall increase is $717,691,000 more than fiscal year 201 7 which includes: $101,750,000 for U.S. Attorneys; $62,452,000 for U.S. Marshals Service operations; $36,912,000 for the Drug Enforcement Administration (DEA) diversion control program and $87,350,000 for DEA operations; $25,850,000 for the Organized Crime and Drug Enforcement Task Forces; $263,001,000 for Federal Bureau oflnvestigation (FBI) operations; $35,176,000 for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and $105,200,000 for the Bureau of Prisons (BOP) operations.

My sense is that these "significant increases" in resources for federal agents and prosecutors could and likely will impact the federal prison population a lot more than any number of higher-profile developments like a memo encouraging pursuit of the death penalty or changes in marijuana policies. one can never repeat the mantra too much: "Follow the money."

March 23, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, March 22, 2018

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

I just noticed on the US Sentencing Commission's website this recent letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office. Here is how the letter gets started:

The Congressional Budget Office has requested the U.S. Sentencing Commission to assist it in its assessment of the budgetary impact of S. 1917, the Sentencing Reform and Corrections Act of 2017, were it to be enacted.  Enclosed with this letter is the Commission’s estimate of the impact of several sections of this bill on the sentences that would be imposed on federal offenders as well as the impact on the size of the federal prison population.

As you can see on the enclosed, the Commission has estimated the number of offenders who would be affected by each section of the bill for which an estimate was possible. Some of those sections have both prospective and retroactive impacts.  For the provisions that have both, the Commission has provided separate estimates of the number of offenders affected. The data used for this analysis was Commission data, however the retroactive analyses were based, in part, on information from the Federal Bureau of Prisons (BOP) as to offenders who were incarcerated as of October 28, 2017.

The detailed "Sentence and Prison Impact Estimate Summary" serves to confirm my long-standing belief that the corrections provisions of SRCA could and would impact many tens of thousands more prisoners than the sentencing reform provisions.  In rough particulars, the USSC analysis suggests about 7,000 current prisoners could benefit from the retroactive sentencing provisions of Title I of the SRCA, whereas over 75,000 current federal prisoners could be eligible for the corrections credits of Title II of the SRCA.  (Prospectively, according to the USSC analysis, a few thousand new offenders would benefit from the sentencing provisions of Title I of the SRCA.  And, though not discussed by the USSC, it is also likely tens of thousands of new offenders would also be able to benefit from the corrections credits of Title II of the SRCA.)

As previously reported, though the SRCA passed the Senate Judiciary Committee by a 16-5 vote last month, the White House has formally expressed support only for the prison reform components of the bill.  Senate Judiciary Chair Charles Grassley has indicated he wants to keep pushing the SRCA in its current form, but other important GOP leaders in the Senate and elsewhere seem prepared and eager only to move forward with prison reform at this time.  In light of these new USSC data, I sincerely hope Senator Grassley and lots of criminal justice reform advocates will appreciate that a huge number of current and future federal prisoners could and would benefit from enacting just the corrections piece of the SRCA.  Given widespread support for reform provisions that could have widespread impact, I hope we see some movement on the corrections front soon.  But, sadly, given an array of problematic personalities and politics, I am not optimistic.

A few prior related posts:

March 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, March 21, 2018

AG Jeff Sessions issues memo to "strongly encourage federal prosecutors ... when appropriate" to pursue "capital punishment in appropriate cases"

United States Attorney General Jeff Sessions this morning issued a short "Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions." Here is the full text of this memo:

The opioid epidemic has inflicted an unprecedented toll of addiction, suffering, and death on communities throughout our nation.  Drug overdoses, including overdoses caused by the lethal substance fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50.  In the face of all of this death, we cannot continue with business as usual.

Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge.  To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal.  This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.

In addition, this should also include the pursuit of capital punishment in appropriate cases.  Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes.  Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)).  I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.

Notwithstanding AG Sessions saying in the first paragraph of this memo that "we cannot continue with business as usual," the last paragraph of this memo strikes me not too much of a change to business as usual.  My sense has always been that the feds will pursue "capital punishment in appropriate cases," especially for intentional murders in conjunction with drug dealing.  As this DPIC page highlights, one of three modern federal executions was of Juan Raul Garza, "a marijuana distributor, [who] was sentenced to death in August 1993 in Texas for the murders of three other drug traffickers."  And the DPIC federal death penalty page also suggests as many as 14 of the 61 persons already on federal death row are there for drug-related killings.

So it seems that federal prosecutors have long used "these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation." But I suppose it is still pretty significant for the US Attorney General to formally and expressly "strongly encourage federal prosecutors to use" various capital punishment statutes to combat our nation's drug problems.  The big practical question that follows, of course, is whether and when more federal capital prosecutions will be forthcoming and in what kinds of cases.

Prior related posts:

March 21, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, March 19, 2018

Highlights from Prez Trump's tough talk about the opioid crisis and federal response

This FoxNews piece, headlined "Trump declares war on opioid abuse, calls for death penalty for traffickers, more access for treatment," provides some details on Prez Trump's comments on the opioid crisis today in New Hampshire.  Here are excerpts:

Speaking from one of the states hardest hit by the opioid epidemic, President Trump on Monday laid out a battle plan that calls for harsher sentences — and even the death penalty — for traffickers.

Trump called for expanded treatment options for victims in the Manchester, N.H., speech, but leveled most of his emphasis on beefed-up enforcement. And he heaped plenty of scorn on the people he believes are responsible for as many as 42,000 U.S. deaths per year. "These are terrible people and we have to get tough with those people," Trump said of traffickers and dealers. "This isn’t about committees... this is about winning a very tough problem."

"The ultimate penalty has to be the death penalty," Trump said, before musing, "maybe our country is not ready for that."

Trump wants Congress to pass legislation reducing the amount of drugs needed to trigger mandatory minimum sentences for traffickers who knowingly distribute certain illicit opioids. The death penalty would be pursued where appropriate under current law. Justice Department says the federal death penalty is available for several limited drug-related offenses, including violations of the "drug kingpin" provisions in federal law.

Trump reiterated an observation he has shared several times before — that a person in the U.S. can get the death penalty or life in prison for shooting one person, but that a drug dealer whose actions could lead to thousands of overdoses can spend little or no time in jail.

The president said the federal government may consider aggressive litigation against pharmaceutical companies deemed complicit in the crisis. "Whether you are a dealer or doctor or trafficker or a manufacturer, if you break the law and illegally peddle these deadly poisons, we will find you and we will arrest you and we will hold you accountable," Trump said.

Trump singled out Mexico and China as main sources of illicit opioids. A Drug Enforcement Administration report last year said: "Seizures indicated that China supplies lower volumes of high-purity fentanyl, whereas fentanyl seizures from Mexico are higher volume but lower in purity."...

Trump also announced a nationwide public awareness campaign, as well as increased research and development through public-private partnerships between the federal National Institutes of Health and pharmaceutical companies. He announced a new website, Crisisnextdoor.gov, where people can share their stories about addiction. The hope is that horror stories will scare people away from behavior that could lead to addiction. The Trump administration aims to see the number of filled opioid prescriptions cut by one-third within three years.

A third part of the plan addresses improving access to treatment and recovery programs that have proven effective. Many health professionals, relatives of those who have died of overdoses and people who have experienced addiction to opioids have been pushing for treatment to be a key component of any campaign to fight the epidemic. "Failure is not an option," the president said. "Addiction is not our future. We will liberate our country from this crisis."...

Meanwhile, Congress plans to weigh a range of bills targeted at curbing the epidemic. The bills cover everything from improving access to treatment to intercepting shipments of illicit opioids en route to the United States. "Our recommendations will be urgent and bipartisan, and they will come very quickly," said Sen. Lamar Alexander, R-Tenn., chairman of the Senate Health, Education, Labor and Pensions Committee, according to published reports.

Interestingly, though the media (and Prez Trump himself in his spoken remarks) are making much of the death penalty and other tough-on-crime pieces of the plan, this official White House accounting of the plans, described as "President Donald J. Trump’s Initiative to Stop Opioid Abuse and Reduce Drug Supply and Demand," gives significantly more attention to public health elements and actions.

Prior related posts:

March 19, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, March 18, 2018

Prez Trump reportedly to call for more capital cases under current federal laws, but not seeking new death penalty laws

Ever since Prez Trump starting talking up his affinity for using the death penalty for drug dealers, I have been wondering if he was planning to call for Congress to develop new capital statutes to help pursue that end.  But, according to this new Wall Street Journal piece, a big speech coming from Prez Trump on Monday will only call for more capital cases to be brought under existing federal criminal laws.  The WSJ piece carries this full on-line headline "Trump’s Opioid Battle Plan Includes Seeking More Death-Penalty Prosecutions: The president will ask the Justice Department to press more cases against drug traffickers under current law."  Here are highlights:

President Donald Trump on Monday will call for new steps to combat the opioid epidemic, including a push to reduce opioid prescriptions by a third over three years, asking the Justice Department to seek more death-penalty cases against drug traffickers under current law, and for federal support to expand the availability of overdose-reversal medication.

The proposals will come in a speech in the hard-hit state of New Hampshire. They form part of a broader blueprint by Mr. Trump, which senior White House officials on Sunday described as seeking to deploy education, law enforcement and treatment to try to reverse abuse of particularly addictive drugs that claim the lives of more than 100 people a day in the U.S.

Other elements of the strategy, the White House said, would include a fresh public-awareness campaign about drug abuse, a research-and-development partnership between the National Institutes of Health and pharmaceutical companies into opioid prescription alternatives, tougher sentences for fentanyl traffickers, and screening of all prison inmates for opioid addiction.

But it is the death penalty proposal that is likely to dominate discussion of the package.  “The Department of Justice will seek the death penalty against drug traffickers when it’s appropriate under current law,” said Andrew Bremberg, the president’s top domestic-policy adviser.

Senior White House officials referred specific questions about the death-penalty stance to the Justice Department but emphasized that the administration was seeking to use current law rather than call for a new federal statute.

A 1988 federal law imposes the death penalty on drug “kingpins” who commit murder in the course of their business.  Some legal analysts say that it has resulted in dozens of sentences but few executions since then.  John Blume, a law professor at Cornell Law School and director of its death-penalty project, said the statute as enforced to date typically has ensnared “mid- to low-level drug dealers…None of them were really objectively the people they said they were going to get.”...

In November, a presidential commission headed by Mr. Trump’s one-time political rival for the Republican presidential nomination, former Gov. Chris Christie of New Jersey, issued a 56-recommendation report that included calls for the federal government to set up drug courts across the U.S., retrain medical prescribers on opioid use and reduce incentives for doctors to offer the powerful painkillers. It also called for engaging with states to expand access to naloxone, an overdose-reversal drug. The administration accepts all 56 recommendations, a senior White House official said Sunday.

At a brief appearance at a White House summit on opioids earlier this month, Mr. Trump openly mused that other countries allow the death penalty for drug trafficking and that he believed they had less of a drug problem as a result. He said that translated into a need for more “strength.” He offered few further details, saying only that he also wanted to see the federal government bring legal action against opioid manufacturers, because “if the states are doing it, why isn’t the federal government doing it?”

Such remarks had sparked speculation that Mr. Trump would seek a new death penalty for drug trafficking, and with it, a revived debate about the permissibility of such laws under the constitutional amendment prohibiting cruel and unusual punishment. The Supreme Court has rejected capital punishment for crimes such as child rape in recent years and has taken a narrower view of arguments that seek to execute people for indirectly causing deaths through criminal actions.

Prior related posts:

March 18, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, March 16, 2018

The latest account of Trump Administration's latest punitive ideas for responding to drug problems

Politico has this lengthy new article reviewing the soon-to-be-released (and perhaps still in development) plan from the Trump Administration to respond to the opioid crisis and other drug problems.  The piece is headlined "Trump finalizing opioid plan that includes death penalty for dealers," and here are excerpts (with an emphasis on punishment pieces though it seems there will be important public health parts to the coming plan):

The Trump administration is finalizing a long-awaited plan that it says will solve the opioid crisis, but it also calls for law enforcement measures — like the death penalty for some drug dealers — that public health advocates and congressional Republicans warn will detract from efforts to reverse the epidemic.

The ambitious plan, which the White House has quietly been circulating among political appointees this month, could be announced as soon as Monday when President Donald Trump visits New Hampshire, a state hard hit by the epidemic. It includes a mix of prevention and treatment measures that advocates have long endorsed, as well as beefed-up enforcement in line with the president’s frequent calls for a harsh crackdown on drug traffickers and dealers.

Trump’s plan to use the death penalty in some cases found at least one fan among congressional Republicans: Rep. Chris Collins of New York, one of the president’s most consistent cheerleaders. “I’m all in on the capital punishment side for those offenses that would warrant that,” he said when asked about the plans Thursday afternoon. “Including drug cases. Yep.”

But several congressional Democrats said they were alarmed by Trump's plan to ramp up punishment. “We are still paying the costs for one failed 'war on drugs,' and now President Trump is drawing up battle plans for another," said Sen. Ed Markey of Massachusetts. "We will not incarcerate or execute our way out of the opioid epidemic."

The White House's most concrete proposal yet to address opioids comes after complaints from state health officials and advocates that Trump has moved too slowly to combat the epidemic after his bold campaign promises to wipe out the crisis touching all parts of the country.

However, the plan could cost billions of dollars more than Trump budgeted — and likely far more than any funding package that Congress would approve — raising questions about how much of it can actually be put into practice. Trump's emphatic embrace of the death penalty for some drug dealers has also alarmed some advocates, who say the idea has been ineffective when tried in other countries and resurrects the nation’s unsuccessful war on drugs.

Under the most recent version of the plan, which has gone through several revisions, the Trump administration proposes to change how the government pays for opioid prescriptions to limit access to powerful painkillers. It also calls on Congress to change how Medicaid pays for treatment, seeking to make it easier for patients with addictions to get inpatient care. It would also create a new Justice Department task force that more aggressively monitors internet sales....

POLITICO obtained two versions of the White House plan and spoke with four individuals who have reviewed it. The White House confirmed that a plan was in development but didn’t respond to multiple requests for further comment. Many of the measures in the plan were recommended by the president’s opioids commission last fall or discussed at a March 1 White House opioid summit. For instance, it endorses a long-promised priority: greatly expanding first responders' access to naloxone, a medication used to reverse opioid overdoses. It also calls on states to adopt a prescription drug monitoring database that health care providers can access nationwide to flag patients seeking out numerous opioid prescriptions.

On the policing side, the plan would ramp up prosecution and punishment, underscoring the tension in how public health advocates and law enforcement officials approach the crisis. Public health advocates say the nation's opioid epidemic should be treated as a disease, with emphasis on boosting underfunded treatment and prevention programs. But some law enforcement officials back tougher punishments as a deterrent, especially for drug dealers. The two camps don’t always see eye-to-eye, at times pitting HHS and DOJ officials against each other. “There is a lot of internal dissension between the health folks and the enforcement folks,” said an official involved in the crafting of the plan.

While Trump this month repeatedly suggested using the death penalty to deter drug dealers and traffickers — an idea roundly opposed by public health advocates — many lawmakers have said they weren’t sure whether to take the idea seriously. “I would have to strongly evaluate and look at any proposal like that,” said Sen. Dan Sullivan (R-Alaska) on Wednesday. “I don’t know if the president was serious or just said it off the cuff. … It’s a big issue when you decide to bring a capital case or pass a law that allows for capital punishment.”

According to language circulating this week, the Trump administration will call for the death penalty as an option in "certain cases where opioid, including Fentanyl-related, drug dealing and trafficking are directly responsible for death."

Sen. Shelley Moore Capito (R-W.Va.), whose home state is one of the hardest hit by the opioid epidemic, said she doesn't support the death penalty for drug cases. “I mean, I get the message he’s delivering: We’ve got to treat it seriously,” she said. “I don’t see that that’s going to solve the problem.”

The White House plan also calls for making it easier to invoke the mandatory minimum sentence for drug traffickers who knowingly distribute illegal opioids that can be lethal, like fentanyl. It also proposes a new Justice Department task force known as “Prescription Interdiction and Litigation,” or PIL, which would be empowered to step up prosecutions of criminally negligent doctors, pharmacies and other providers.

As serious sentencing fans perhaps already realize, though any proposal for the death penalty for drug dealers is sure to garner a lot of attention, proposals to expand the reach or application of mandatory minimum sentences are sure to be far more consequential to the day-to-day operation of the federal criminal justice system.

Prior related posts:

March 16, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8)

Sunday, March 11, 2018

"More Imprisonment Does Not Reduce State Drug Problems"

The title of this post is the title of this notable new Issue Brief from Pew with a message summarized by the document's subtitle: "Data show no relationship between prison terms and drug misuse." Here is the document's overview:

Nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980.  These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

As the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems.  To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies.  The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings — which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017 — reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.  The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

March 11, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1)

Saturday, March 10, 2018

Trump Administration reportedly looking (seriously?) at the death penalty for serious drug dealers

In reported in prior posts here and here, Prez Trump has reportedly talked privately about how drug dealers are as bad as serial killers and has talked publicly about using the "ultimate penalty" to address drug problems. Now according to this new Washington Post article, headlined "Trump administration studies seeking the death penalty for drug dealers," these musings by President Trump are now a policy proposal being seriously examined by the administration:

The Trump administration is studying new policy that could allow prosecutors to seek the death penalty for drug dealers, according to people with knowledge of the discussions, a sign that the White House wants to make a strong statement in addressing the opioid crisis.

President Trump last week suggested executing drug dealers as a way to make a dent in opioid addiction. Opioids killed nearly 64,000 people in 2016, and the crisis is straining local health and emergency services.

People familiar with the discussions said that the president’s Domestic Policy Council and the Department of Justice are studying potential policy changes and that a final announcement could come within weeks. The White House has said one approach it might take is to make trafficking large quantities of fentanyl — a powerful synthetic opioid — a capital crime because even small amounts of the drug can be fatal. White House officials also are studying tougher noncapital penalties for large-scale dealers.

Trump said last week that the administration would soon roll out unspecified “strong” policies on opioids. White House officials said Trump has privately expressed interest in Singapore’s policy of executing drug dealers. “Some countries have a very tough penalty, the ultimate penalty, and they have much less of a drug problem than we do,” Trump said during an appearance at a White House summit on opioids last week.

Trump also has endorsed Philippine President Rodrigo Duterte’s approach to the issue; Duterte’s “drug war” has led to the deaths of thousands of people by extrajudicial police killings. Last year, Trump praised Duterte in a phone call for doing an “unbelievable job on the drug problem,” according to the New York Times. Kellyanne Conway, counselor to the president, is leading much of the work on opioids for the White House. Singaporean representatives have briefed senior White House officials on their country’s drug policies, which include treatment and education, but also the death penalty, and they provided a PowerPoint presentation on that country’s laws.

Singapore’s model is more in line with the administration’s goals for drug policy than some other countries, a senior administration official said. “That is seen as the holistic approach that approximates what this White House is trying to do,” a senior administration official said....

Federal law currently allows for the death penalty to be applied in four types of drug-related cases, according to the Death Penalty Information Center: murder committed during a drug-related drive-by shooting, murder committed with the use of a firearm during a drug trafficking crime, murder related to drug trafficking and the death of a law enforcement officer that relates to drugs.

Peter H. Meyers, a professor at the George Washington University School of Law, said he doesn’t agree with the idea of adding more capital crimes for drug dealers, but he said it could be a legal approach: “It very likely would be constitutional if they want to do it.”

The administration’s directives come as prosecutors nationwide are cracking down on higher-level drug dealers and law enforcement officials are looking at increased penalties for fentanyl trafficking and dealing. But at the same time, public health officials — including those in the Trump administration — and many in law enforcement are emphasizing treatment rather than punitive measures for low-level users and those addicted to drugs.

Attorney General Jeff Sessions has directed federal prosecutors to pursue the most severe penalties for drug offenses.  The Department of Justice said last year it will aggressively prosecute traffickers of any fentanyl-related substance.

If (when?) we see a serious formal death penalty proposal for drug dealers, I will have a lot more to say on the topic. For now, I will be content with three "hot takes" (with number 3 to get a lot more attention if this discourse continues):

1. It is not at all clear that death sentences for drug dealers, even for those whose drugs cause multiple deaths, would be constitutional; it is entirely clear that the issue would be litigated extensively and would have to be definitively decided by the US Supreme Court.

2. If Prez Trump is truly interested in "executing drug dealers" rather than just sending them to death row, he needs to get his Justice Department to get serious about trying to actually execute some of the five dozens murderers languishing  on federal death row (some of whom have been on federal death row for two decades or longer).  

3. If the White House (and/or Attorney General Sessions) is seriously interested in a legislative proposal to make the "worst of the worst" drug dealers eligible for the death penalty, I would seriously urge Senate Judiciary Chair Chuck Grassley to consider adding the proposal to his Sentencing Reform and Corrections Act as part of an effort to get the White House and AG Sessions to support that bill.  Even if drafted broadly, any federal "death penalty for drug dealers" law would likely only impact a few dozen cases per year, whereas the SRCA will impact tens of thousands of cases every year.  And the SRCA could help tens of thousands of least serious drug offenders while any death penalty bill would impact only the most serious drug offenders.

Prior related posts:

UPDATE: Not long after this posting, Prez Trump gave a speech in Pennsylvania that, as reported in this new Washington Post piece, covered this ground and received a positive response for the audience:

President Trump on Saturday again called for enacting the death penalty for drug dealers during a rally meant to bolster a struggling GOP candidate for a U.S. House seat here. During the campaign event in this conservative western Pennsylvania district, the president also veered off into a list of other topics, including North Korea, his distaste for the news media and his own election victory 16 months ago.

Trump said that allowing prosecutors to seek the death penalty for drug dealers — an idea he said he got from Chinese President Xi Jinping — is “a discussion we have to start thinking about. I don’t know if this country’s ready for it.”

“Do you think the drug dealers who kill thousands of people during their lifetime, do you think they care who’s on a blue-ribbon committee?” Trump asked. “The only way to solve the drug problem is through toughness. When you catch a drug dealer, you’ve got to put him away for a long time.”

It was not the first time Trump had suggested executing drug dealers. Earlier this month, he described it as a way to fight the opioid epidemic. And on Friday, The Washington Post reported that the Trump administration was considering policy changes to allow prosecutors to seek the death penalty.

But on Saturday his call for executing drug dealers got some of the most enthusiastic cheers of the night. As Trump spoke about policies on the issue in China and Singapore, dozens of people nodded their heads in agreement. “We love Trump,” one man yelled. A woman shouted: “Pass it!”

March 10, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (6)

Friday, March 09, 2018

"Can We Wait 75 Years to Cut the Prison Population in Half?"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it starts and concludes:

The U.S. prison population grew by more than 600% between 1973 and 2009 — from 200,000 people to 1.6 million.  Tough-on-crime policies expanded the number of imprisoned people even while crime rates plunged to 40% below their levels in the 1990s.  In recent years, policymakers and criminal justice professionals have implemented reforms to correct the punitive excesses of the past.  By yearend 2016 the number of people held in U.S. prisons had declined by 6% since a 2009 peak, and crime rates have continued to decline.

But the overall impact of reforms has been quite modest. With 1.5 million people in prison in 2016, the prison population remains larger than the total population of 11 states.3 If states and the federal government maintain their recent pace of decarceration, it will take 75 years — until 2093 — to cut the U.S. prison population by 50%.  Expediting the end of mass incarceration will require accelerating the end of the Drug War and scaling back sentences for serious crimes....

Just as mass incarceration was developed primarily as a result of changes in policy, not crime rates, so too has decarceration reflected changes in both policy and practice.  These have included such measures as drug policy sentencing reforms, reduced admissions to prison for technical parole violations, and diversion options for persons convicted of lower-level property and drug crimes.

The movement to end mass incarceration not only faces political reluctance to meaningfully reduce the U.S. prison population, it has also had to address renewed calls to further expand the prison population, including: increasing prison terms for immigration law violations, reversals of Obama-era reforms in federal sentencing, and punitive responses to the opioid crisis.  While defending the progress made in recent years, we must also strive for criminal justice reforms bold enough to tackle mass incarceration.

March 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, March 01, 2018

Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers"

In this post from a few days ago, I noted a report that Prez Trump has been known privately to give "a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty."  Now, as reported here by CBS News under the headline "Trump brings up death penalty for drug dealers, suing drug companies at opioids summit," Prez Trump has brought his thinking into the public discourse:

President Trump made an unexpected appearance at a White House summit on the opioid crisis Thursday afternoon, floating penalties for "opioid companies" and tougher punishments for drug dealers, noting that some countries have the "ultimate penalty."

"The administration's gonna' be rolling out policy over the next three weeks and it'll be very, very strong," the president said. "I've also spoken with Jeff (Sessions) about bringing a lawsuit against some of these opioid companies. I mean, what they're doing and the way, the distribution. You have people who go to the hospital with a broken arm and the come out addicted. They're addicted to painkillers, and they don't even know what happened."

"So we're going to very much, you know, as you know, I think we've been more involved than any administration by far. It's a problem that's growing.  And drugs are a similar but different problem in the sense that we have pushers, and we have drug dealers that don't — I mean, they kill hundreds and hundreds of people.  And most of them don't even go to jail. You know, if you shoot one person, they give you life, they give you the death penalty. These people can kill 2,000, 3000 people, and nothing happen to them. And we need strength with respect to the pushers and to the drug dealers. And if you don't do that, you're never going to solve the problem."

"Some countries have a very, very tough penalty, the ultimate penalty," the president said.  "And by the way, they have much less of a drug problem than we do.  So we're going to have to be very strong on penalties.  Hopefully we can do some litigation against the opioid companies."

A video of Prez Trumps comments are available at this link via CNN.  Yikes!

Prior related post:

March 1, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, February 28, 2018

New Buried Alive Project taking on LWOP sentences for federal drug offenses

An important new effort to take a hard look and extreme federal sentences recent launched under a (great) fitting name: The Buried Alive Project.  Here is how the project's website explains its basic mission:

The Buried Alive Project works to raise awareness and help eliminate life without parole sentences for federal drug offenses through transformative legislation and litigation.  We use statistics and stories to educate the public and amplify the voices of those directly impacted.  The human element is rarely addressed but necessary to drive change needed to reform the criminal justice system.  By engaging people across the country, this project will harness America’s collective interest, passion, and direct experience of this issue into concrete change.

The Dallas Morning News has this Q&A with Brittany Barnett, a lawyer who help found the Buried Alive Project.  Here is an excerpt:

Who are some of the individuals who remain buried alive by this sentencing?

Alice Johnson, a 62-year-old grandmother and great-grandmother from Memphis, is serving her 21st year of a life without parole sentence for her role in a non-violent drug conspiracy.  Like Sharanda [Jones], this is Ms. Alice's first ever conviction — felony or otherwise. Absolutely no aspect of her offense was violent.

Ms. Alice, who has served one-third of her life in prison, has an outstanding record of achievement in prison and works diligently to prove she is deserving of a second chance at life. A life without parole sentence demands a special kind of courage — the ability to act with grace and dignity in a totally degrading situation. Ms. Alice epitomizes this special kind of courage.

Keeping Alice in prison for the rest of her life serves no useful purpose to her or society. We cannot barter human lives for sake of appearing tough on crime. It is an utter waste of human life and taxpayer dollars.

February 28, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Sunday, February 25, 2018

Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"

The quoted portion of the title of this post comes from this new Axios report by Jonathan Swan headlined "Trump privately talks up executing all big drug dealers." The piece is notable for more than just the death penalty talk, and here are extended excerpts:

In Singapore, the death penalty is mandatory for drug trafficking offenses.  And President Trump loves it.  He’s been telling friends for months that the country’s policy to execute drug traffickers is the reason its drug consumption rates are so low.  "He says that a lot," said a source who's spoken to Trump at length about the subject. "He says, 'When I ask the prime minister of Singapore do they have a drug problem [the prime minister replies,] 'No. Death penalty'."

But the president doesn't just joke about it. According to five sources who've spoken with Trump about the subject, he often leaps into a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty.  Trump tells confidants a softer approach to drug reform — the kind where you show sympathy to the offenders and give them more lenient sentences — will never work. He tells friends and associates the government has got to teach children that they'll die if they take drugs and they've got to make drug dealers fear for their lives.

Trump has said he would love to have a law to execute all drug dealers here in America, though he's privately admitted it would probably be impossible to get a law this harsh passed under the American system.

Kellyanne Conway, who leads the White House's anti-drug efforts, argues Trump's position is more nuanced, saying the president is talking about high-volume dealers who are killing thousands of people. The point he's making, she says, is that some states execute criminals for killing one person but a dealer who brings a tiny quantity of fentanyl into a community can cause mass death in just one weekend, often with impunity.

Trump may back legislation requiring a five-year mandatory minimum sentence for traffickers who deal as little as two grams of fentanyl.  Currently, you have to deal forty grams to trigger the mandatory five-year sentence. (The DEA estimates that as little as two milligrams is enough to kill people.)...

Conway told me this kind of policy would have widespread support. “There is an appetite among many law enforcement, health professionals and grieving families that we must toughen up our criminal and sentencing statutes to match the new reality of drugs like fentanyl, which are so lethal in such small doses,” she said. "The president makes a distinction between those that are languishing in prison for low-level drug offenses and the kingpins hauling thousands of lethal doses of fentanyl into communities, that are responsible for many casualties in a single weekend."

Trump wants to get tough on drug traffickers and pharmaceutical companies. Stay tuned for policy announcements in the not-too-distant future. Trump and some of his advisers are discussing whether they might adopt other aspects of Singapore's "zero tolerance" drug policies, like bringing more anti-drug education into schools.

Notably, Section 109 of the Sentencing Reform and Corrections Act of 2017 that just recently passed through the Senate Judiciary Committee includes a five-year mandatory consecutive term of imprisonment for dealing fentanyl.  So the report that "Trump may back legislation requiring a five-year mandatory minimum sentence for traffickers who deal as little as two grams of fentanyl" may be a reference to this provision of the SRCA or it might be a reference to another piece of proposed legislation.  Either way, it would seem that Prez Trump is now inclined to embrace a punitive mind-set for dealing with the nation's drug problems (though, as this old press story reveals, he once previously said "you have to legalize drugs to win that war ...  to take the profit away from these drug czars.")

February 25, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, February 15, 2018

"Aching bad: 'Kingpin Granny' nicked in huge prescription drugs bust"

As a fan of Breaking Bad, I could not resist using the title of this news report of a notable drug dealer as the title of this post.  Here is the story:

Silver surfers are known to rattle from the numerous pills foisted on them by doctors as their health fails, but one Tennessee veteran stands accused of possessing drugs with an altogether different purpose.

Dubbed "Kingpin Granny" by Decatur County cops, The Smoking Gun reported that 75 year-old wheelchair-bound Betty Jean Jordan was arrested at her home in Parsons, 160km (100 miles) southwest of Nashville, on Friday following an undercover investigation in which agents bought tabs from her.

The subsequent raid on the gangster granny's property uncovered over a thousand pills including the opioid painkiller Oxycodone, smack addict weaner Methadone and anti-anxiety tranq Xanax. Cops also said they seized more than $12,000 in "cash and assets".

Jordan was slapped with six felony narcotic charges – one count of drug manufacturing/delivery/sale, two counts of possession of a prescription drug with intent, one count of possession of a prescription drug – plus one count of evading arrest.

The little old lady was taken to the county slammer but was released after posting the $50,000 bond. Meanwhile, authorities are further investigating the alleged distribution ring and hope to make more arrests.

February 15, 2018 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (0)

Wednesday, February 14, 2018

AG Sessions writes to Senator Grassley to say passages of SRCA "would be a grave error"

Via this new HuffPost piece, headlined "Jeff Sessions Opposes Bipartisan Drug Sentencing Reform Bill," I see that Attorney General Jeff Sessions has now officially weighed in on the Sentencing Reform and Corrections Act of 2017 due to be considered by the Senate Judiciary Committee tomorrow morning. Here are the basics:

Attorney General Jeff Sessions has come out swinging against a bipartisan drug sentencing reform bill that has the support of many of his former Republican colleagues in the Senate, warning that the legislation would be a “grave error” and not allow adequate punishment for “a highly dangerous cohort of criminals.”

In a Feb. 14 letter to his former colleague Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee, Sessions wrote that he “strongly” urged the Senate to consider the ramifications of the bill.

“In recent years, convicted drug traffickers and other violent criminals have received significant sentencing breaks from the federal courts and the United States Sentencing Commission.” Sessions wrote. “Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation’s history would make it more difficult to achieve our goals and have potentially dire consequences.”

The full text of the three-page letter from AG Sessions to Senator Grassley is embedded in the HuffPost piece (and is also available here thanks to Politico), and it starts this way:

This letter presents the views of the Department of Justice on S. 1917, the "Sentencing Reform and Corrections Act of 2017." S. 1917 presents issues of very great importance to the public safety of the United States and will impact a number of cases.

The legislation would reduce sentences for a highly dangerous cohort of criminals, including repeat dangerous drug traffickers and those who use firearms, and would apply retroactively to many dangerous felons. regardless of citizenship or immigration status. In my opinion, if passed in its current form, this legislation would be a grave error....

I would strongly urge the Senate to consider carefully the potential ramifications of this legislation in its current form.  In recent years, convicted drug traffickers and other violent criminals have received significant sentencing breaks from the federal courts and the United States Sentencing Commission.  Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation's history would make it more difficult to achieve our goals and have potentially dire consequences.  In addition, as you know, the Administration supports helping former inmates who have served lawfully imposed sentences and have demonstrated a commitment to a better life, and is working closely with Congress to achieve a responsible reform along these lines.  Respectfully, this legislation runs counter to this serious Administration-wide effort.

A few prior related posts:

UPDATE: I just saw that Senator Grassley took to Twitter to respond to the letter from AG Sessions:

February 14, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Monday, February 12, 2018

Interesting tales of a local grand jury that decided some drug cases were not as criminal as a ham sandwich

This recent local article from Arizona, headlined "Tucson grand jurors rebel against drug prosecutions," provides an interesting report on some interesting work by a local grand jury.  Here are highlights:

You may have heard that saying: If prosecutors want to, they could get a grand jury to indict a ham sandwich. It’s a knock on how much control prosecutors hold over the grand juries to whom they give evidence for possible indictments.

The 269th Pima County Grand Jury could not be controlled like that.  That 16-member grand jury met from July to October last year, one of two county grand juries meeting twice a week in Tucson at the time.  But this one was led by a criminal-defense attorney and populated by freethinkers who took to heart their role as “conscience of the community.”

They went so far as to decline to indict people even though there was enough evidence to show probable cause, foreman Natman Schaye and others told me. That, in essence, is grand-jury nullification — not carrying out the law because, in the jury’s opinion, it is unjust.  “There were cases where we felt like, maybe there’s probable cause, but this is not something that we believe should result in a felony,” Schaye said.

Rick Myers, a well-known Tucsonan who is a member of the Arizona Board of Regents, also was on the Notorious 269th. What bothered him was the many cases of small quantities of drugs that were charged as Class 4 felonies, as state law dictates. He said he began making a distinction between what’s actually a “crime” and what’s “breaking the law.”

The reason, another grand juror, Jodi Kautz, said was: They were presented with possession cases involving drug amounts as tiny as 2/100th of a gram, a trace amount. “We left every day frustrated, and frustrated for society,” Myers said. “There’s a whole lot of people getting charged for things that are not hurting other people.” As a grand juror, he said, “You want to not just be a rubber stamp. You want to do what’s right.”...

Deputy County Attorney Malena Acosta, who runs the grand juries, and Thomas Weaver, the chief criminal deputy, told me the number of drug cases is a function of the number of arrests by police. “We respond to what comes through the door,” Weaver said. “If we’re getting more cases presented to us, then there will be more cases charged.”

He also noted that a significant proportion, maybe half, of the cases brought to them are never brought to a grand jury, because of problems with the cases. And it’s not as if the prosecutors have a choice on how to charge the possession cases involving any drug except marijuana.  Meth, cocaine, heroin — whatever someone has, and however much, that will earn them a class 4 felony.  Marijuana possession can be treated as a misdemeanor.

LaWall explained her thinking on charging decisions: “If police officers bring us cases, and the evidence is there, we make our decisions based on legal reasoning. If the evidence proves a crime was committed, we have an ethical obligation to follow the law.”  She also noted that her office has created various programs that are alternatives to prison for drug offenders, but they occur after they are convicted, so they’d have to be charged to take part.

As to the grand jurors’ decision to reject some cases with adequate evidence, Acosta said that really isn’t their place.  They take an oath to follow the law before taking their seats, she said. “If somebody has a particular agenda, I suppose they can go to the Legislature and say, ‘We don’t like this law, maybe you should change it.’ But the grand jury isn’t the place for that kind of activity,” she said.

Joel Feinman was happy to hear of grand jurors exercising their usually unused muscles.  The Pima County public defender has been compiling data on the steadily growing number of felony cases and drug prosecutions in an effort to reduce jail stays and prison sentences.  His most stunning discovery concerned the amount of drugs possessed by those charged in the 725 felony drug cases his office has received in the last five months.  The median amount in all those cases, he said, was 0.496 of a gram.  “Felony filings are at an all-time high, felony drug filings are at an all-time high — and are a plurality of the cases — and the median amount is half a sugar packet,” he said.

That’s what bothered some of the grand jurors of the Notorious 269th.  “The drugs are the ones that bug me,” said Myers, the regent. “I feel like we have a puritanical view of even a minuscule amount of drugs.” Said Schaye: “It’s tremendously frustrating. We put far too many people in prison, and it does no good.”... “We all took it extremely seriously, because these are people’s lives. A felony really screws you over.”

February 12, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, February 10, 2018

Highlighting how mandatory minimums can distort pretrial procedures and practices

LawProf Jeff Bellin his week had this effective Slate commentary on a notable recent Second Circuit ruling. The Second Circuit in US v. Tigano, available here, found the defendant's Sixth Amendment right to a speedy trial was violated by almost seven years of pretrial detention. Bellin's piece, headlined "Waiting for Justice: One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts," spotlights how mandatory minimum sentencing statutes lurked below this (not-so) remarkable case.  Here are excerpts:

Tigano’s case fits a familiar narrative of clogged courts and bureaucratic indifference. But there is one important complication coverage has overlooked.  While the appeals court and subsequent media portrayals suggest that prompt trials are the solution to cases like Tigano’s, the real fix is long-delayed, bipartisan sentencing reform.  That is because the problem in Tigano’s case was not neglect, but a 20-year mandatory-minimum sentence that loomed over every decision in the case.

Tigano’s case was no Agatha Christie mystery.  Federal agents found 1,400 marijuana plants growing in Tigano’s residence.  What’s more, three separate agents testified that Tigano confessed that he grew the marijuana.  That’s a tough case to fight.  He was going to lose at trial, it seemed, and he was going to lose big.  While many states are lining up to cash in on marijuana legalization, federal law still dictates that a person who grows “1,000 or more [marijuana] plants … shall be sentenced to a term of imprisonment which may not be less than 10 years.”  That’s a 10-year mandatory prison term for growing marijuana — doubled for anyone, like Tigano, with a prior felony drug conviction.

That is why the attorneys and lower court judges in Tigano’s case overlooked the speedy trial rule.  They were not neglecting Tigano.  They were, instead, repeatedly delaying his case — to the point of ordering three needless mental competency examinations — in the hope that Tigano would agree to a plea deal.  With 20 years on the horizon, everyone, including Tigano’s own attorneys, could put up with an otherwise unconscionable delay that would ultimately be deducted from his eventual sentence.

Tigano, however, insisted on his constitutional right to a trial.  After seven years, he finally got it.  There were no surprises. The jury convicted and the judge sentenced him to 20 years in federal prison. Of course, no one expected the final twist.  On appeal, the lengthy pretrial delay set Tigano free....

The appeals court’s opinion says that “no single, extraordinary factor caused the cumulative seven years of pretrial delay.”  That’s wrong.  The 20-year mandatory sentence for growing marijuana ignited all the chaos in Tigano’s case.  That’s the dirty secret about mandatory minimums: They don’t just lead to unjust sentences; they distort proceedings in countless cases where they are never imposed.  Most alarmingly, harsh mandatory sentences pressure even innocent people to plead guilty to avoid long prison sentences.  And for the bold few who still go to trial, like Tigano, these laws prevent judges from imposing fair sentences....

Mandatory minimums don’t just ensure harsh, often disproportionate sentences.  They also cause massive distortions in the criminal justice system, leaving it a pale shadow of this nation’s ideals.

February 10, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1)