Wednesday, March 15, 2017

AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement

Jeff-sessions-attorney-general-630x354The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop).  Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech.  Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space.  And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:

First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak....  In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen warning signs that this progress is now at risk.  The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968.  And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....

My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend.  I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place.  While we can hope for the best, we can’t afford to be complacent.  When crime rates move in the wrong direction, they can move quickly....

Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.

First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime.  Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service.  The task force will evaluate everything we are doing at the federal level.

Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level.  This trend will end.  This Department of Justice will systematically prosecute criminals who use guns in committing crimes....

Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.

Our nation is in the throes of a heroin and opioid epidemic.  Overdose deaths more than tripled between 2010 and 2014.  According to the CDC, about 140 Americans on average now die from a drug overdose each day.  That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks.  Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery.  We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention.  Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.  One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital. But treatment often comes too late to save people from addiction or death.  So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use.  But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store.  And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.

I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history.  The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.

Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above.  Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency.  (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.) 

March 15, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Gun policy and sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (20)

Sunday, March 05, 2017

Deep dive into litigation over Chicago “Stash House Stings”

Because the President of the United States has often expressed concerning about crime in Chicago and has tweeted about sending in the feds, I hope the Prez and his advisers find time to check out this recent lengthy Chicago Tribune article about some of the work of the feds in this city in the recent past.  The article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," merits a full read, and here is an extended taste:

For four years, Mayfield had been struggling to turn his life around after more than a decade in prison. To escape the street life, he moved to Naperville with his fiancee's family and managed to find a full-time job at a suburban electronics facility that paid 12 bucks an hour. It was there that a co-worker lured him into the robbery after weeks of effort, promising a big score.

Now, inside the police vehicle, the sounds of flash-bang grenades still ringing in his ears, Mayfield started to piece it all together. There was no stash house, no cartel drugs or associates to rob. It was a crime dreamed up by federal authorities and carried out with the help of Mayfield's co-worker to reel him in when he was at his most vulnerable.

Eight years later, Mayfield, 48, and dozens of others are at the center of a brewing legal battle in Chicago's federal court over whether the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' signature sting operation used racial bias in finding its many targets.

A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country. A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.

Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings....

Earlier this month, federal prosecutors filed a lengthy motion vehemently disputing that minorities were unfairly targeted in the stash house cases, saying the expert report filed by the defense was "riddled with false assumptions that were designed to manufacture a racial disparity where none exists." The dispute sets up what could be an unprecedented hearing at the Dirksen U.S. Courthouse in the coming months involving a panel of district judges hearing the multiple criminal cases at once.

"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."...

According to the ATF, stash house stings are a key part of the agency's national effort to target people who "show a propensity of doing harm to the public through violent behavior." Launched in Miami during the cocaine-war days of the early 1990s, the stings have been honed over the years and are run by experienced agents who use a tightly controlled playbook.

They typically begin when an informant provides the ATF information about a potential target who has expressed interest in taking part in a robbery. The informant then introduces the target to an undercover agent who poses as a disgruntled courier for a drug cartel and offers an opportunity to steal large quantities of drugs from a stash house guarded by men with guns.

In a series of conversations captured on undercover wire, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime. "At the time of arrest, the home invasion defendants are poised, at any moment, to invade a stash house, steal kilograms of cocaine guarded by armed cartel members, and in the process, kill or be killed," prosecutors wrote in their recent court filing.

In order to avoid arguments of entrapment in court, the stings are supposed to target only established robbery groups. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched. Not only were the operations a boon for the ATF but the resulting prosecutions also netted eye-popping sentences — sometimes up to life in prison — in part because defendants were criminally liable for the amount of imaginary drugs they believed they were stealing. It didn't matter that the robbery was fake or that no drugs actually existed....

The lengthy sentences were just one pattern that raised red flags for the criminal defense bar. In case after case, the ATF stings seemed to be targeting only minorities. In early 2013, a handful of private attorneys and assistant federal defenders, all veterans at the Dirksen U.S. Courthouse, were so troubled by a stash house case they were defending that they asked the U.S. attorney's office for a complete list of all the defendants in similar cases sorted by race. Prosecutors rebuffed this admittedly unorthodox request. "ATF does not maintain statistics on the nature in question at either the local or national level," Assistant U.S. Attorney Philip Fluhr wrote in response, court records show.

The defense lawyers then asked the judge overseeing the case to order prosecutors to turn over detailed information on how the stash house stings are run and the race of the defendants who had been charged so far. They included their own research showing more minorities were targeted. Prosecutors strenuously objected. But a few months later, U.S. District Chief Judge Ruben Castillo allowed the discovery to go forward. "History has shown a continuing difficult intersection between the issue of race and the enforcement of our nation's criminal laws," wrote Castillo, concluding that the defense team had "made a strong showing of potential bias."

Similar motions in other stash house cases soon followed, but the effort to prove racial bias was being made case-by-case with no coordination. Then in 2014, the University of Chicago's Federal Criminal Justice Clinic agreed to focus all its efforts on the 12 stash house cases and their 43 defendants. This allowed the defense attorneys to address the alleged racial bias in a coordinated effort, a critical undertaking given the government's massive resources, the attorneys said....

As the movement to fight the stash house cases gathered steam among defense attorneys, the judiciary also weighed in with some key decisions. In November 2014, the full 7th Circuit U.S. Court of Appeals granted Mayfield a new trial in a rare decision that concluded Potts had "targeted Mayfield at a moment of acute financial need and against a backdrop of prolonged difficulty finding permanent, family-supporting work."

In a 2012 dissenting opinion as the case was winding through the court, appellate Judge Richard Posner had put an even finer point on it, referring to the stings as a "disreputable tactic" that used government informants to target people at a vulnerable time in their lives. Meanwhile, another ruling in July 2015 by the appellate court in Chicago resulted in the government turning over more data on the stash house stings sought by the defense. The ruling allowed the defendants to move ahead with what is believed to be the most thorough analysis of the stings anywhere in the country....

The debate is now potentially headed for a court hearing involving all defendants. The outcome could set precedent for judges in other states. "Courts tend to give law enforcement a lot of leeway," said University of California-Irvine law professor Katharine Tinto, a criminal law expert who has written extensively about the stash house stings. "… The fact that an expert is saying a federal law enforcement agency is discriminating on the basis of race is something everybody should be watching."

March 5, 2017 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Saturday, February 25, 2017

Disconcerting review of modern America highlighting impacts of opioid epidemic and mass criminal enforcement

March_2017_CoverA helpful reader highlighted to me this extended article from Commentary by Nicholas Eberstadt that covers a lot of (depressing) ground about modern realities in the United States.  The full title of the piece highlights its themes: "Our Miserable 21st Century: From work to income to health to social mobility, the year 2000 marked the beginning of what has become a distressing era for the United States." I recommend the full article for lots of reasons (especially for those still struggling to figure out why so many folks were inclined to vote for Prez Trump), and here snippets of passages that struck me as particularly interesting for those concerned with modern opioid problem and broader criminal justice realities:

The opioid epidemic of pain pills and heroin that has been ravaging and shortening lives from coast to coast is a new plague for our new century. The terrifying novelty of this particular drug epidemic, of course, is that it has gone (so to speak) “mainstream” this time, effecting breakout from disadvantaged minority communities to Main Street White America. By 2013, according to a 2015 report by the Drug Enforcement Administration, more Americans died from drug overdoses (largely but not wholly opioid abuse) than from either traffic fatalities or guns. The dimensions of the opioid epidemic in the real America are still not fully appreciated within the bubble, where drug use tends to be more carefully limited and recreational. In Dreamland, his harrowing and magisterial account of modern America’s opioid explosion, the journalist Sam Quinones notes in passing that “in one three-month period” just a few years ago, according to the Ohio Department of Health, “fully 11 percent of all Ohioans were prescribed opiates.” And of course many Americans self-medicate with licit or illicit painkillers without doctors’ orders.

In the fall of 2016, Alan Krueger, former chairman of the President’s Council of Economic Advisers, released a study that further refined the picture of the real existing opioid epidemic in America: According to his work, nearly half of all prime working-age male labor-force dropouts — an army now totaling roughly 7 million men — currently take pain medication on a daily basis....

But how did so many millions of un-working men, whose incomes are limited, manage en masse to afford a constant supply of pain medication? Oxycontin is not cheap. As Dreamland carefully explains, one main mechanism today has been the welfare state: more specifically, Medicaid, Uncle Sam’s means-tested health-benefits program.... In 21st-century America, “dependence on government” has thus come to take on an entirely new meaning....

The drop in crime over the past generation has done great things for the general quality of life in much of America. There is one complication from this drama, however, that inhabitants of the bubble may not be aware of, even though it is all too well known to a great many residents of the real America. This is the extraordinary expansion of what some have termed America’s “criminal class” — the population sentenced to prison or convicted of felony offenses — in recent decades. This trend did not begin in our century, but it has taken on breathtaking enormity since the year 2000.

Most well-informed readers know that the U.S. currently has a higher share of its populace in jail or prison than almost any other country on earth, that Barack Obama and others talk of our criminal-justice process as “mass incarceration,” and know that well over 2 million men were in prison or jail in recent years. But only a tiny fraction of all living Americans ever convicted of a felony is actually incarcerated at this very moment. Quite the contrary: Maybe 90 percent of all sentenced felons today are out of confinement and living more or less among us. The reason: the basic arithmetic of sentencing and incarceration in America today. Correctional release and sentenced community supervision (probation and parole) guarantee a steady annual “flow” of convicted felons back into society to augment the very considerable “stock” of felons and ex-felons already there. And this “stock” is by now truly enormous.

One forthcoming demographic study by Sarah Shannon and five other researchers estimates that the cohort of current and former felons in America very nearly reached 20 million by the year 2010. If its estimates are roughly accurate, and if America’s felon population has continued to grow at more or less the same tempo traced out for the years leading up to 2010, we would expect it to surpass 23 million persons by the end of 2016 at the latest. Very rough calculations might therefore suggest that at this writing, America’s population of non-institutionalized adults with a felony conviction somewhere in their past has almost certainly broken the 20 million mark by the end of 2016. A little more rough arithmetic suggests that about 17 million men in our general population have a felony conviction somewhere in their CV. That works out to one of every eight adult males in America today.

We have to use rough estimates here, rather than precise official numbers, because the government does not collect any data at all on the size or socioeconomic circumstances of this population of 20 million, and never has. Amazing as this may sound and scandalous though it may be, America has, at least to date, effectively banished this huge group—a group roughly twice the total size of our illegal-immigrant population and an adult population larger than that in any state but California—to a near-total and seemingly unending statistical invisibility. Our ex-cons are, so to speak, statistical outcasts who live in a darkness our polity does not care enough to illuminate—beyond the scope or interest of public policy, unless and until they next run afoul of the law.

Thus we cannot describe with any precision or certainty what has become of those who make up our “criminal class” after their (latest) sentencing or release. In the most stylized terms, however, we might guess that their odds in the real America are not all that favorable. And when we consider some of the other trends we have already mentioned — employment, health, addiction, welfare dependence — we can see the emergence of a malign new nationwide undertow, pulling downward against social mobility.

February 25, 2017 in Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (3)

Tuesday, February 21, 2017

US Sentencing Commission releases big new report on "Recidivism Among Federal Drug Trafficking Offenders"

The US Sentencing Commission today released the second major report emerging from a huge assessment of federal offenders released from prison in 2005.  This USSC webpage provides this background and highlights from this 149-page data-rich report:

This report, Recidivism Among Federal Drug Trafficking Offenders examines a group of 10,888 federal drug trafficking offenders who were released in calendar year 2005. These 10,888 offenders, who were all U.S. citizens, represent 42.8 percent of the 25,431 federal offenders who were released in calendar year 2005 and analyzed in the Commission’s 2016 report, Recidivism Among Federal Offenders: A Comprehensive Overview. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

Chapter One summarizes the group studied in this report as well as its key findings. It also explains the methodology used in the report. Chapter Two provides an overview of the statutes and guidelines most often applicable to federal drug trafficking offenses, and reports the demographics and recidivist behavior of drug trafficking offenders as a whole. Chapters Three through Seven provide detailed information about offenders as classified by the drug types studied in this report: powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. Chapter Eight concludes by reviewing the report’s findings.

Some highlights of the Commission’s study are that:

  • Over the eight-year follow-up period, one-half (50.0%) of federal drug trafficking offenders were rearrested (see bar chart). Of those drug trafficking offenders who recidivated, the median time to rearrest was 25 months.

  • In general, there were few clear distinctions among the five drug types studied. One exception is that crack cocaine offenders recidivated at the highest rate (60.8%) of any drug type. Recidivism rates for other drug types were between 43.8% and 50.0% (see table).

  • Nearly one-fourth (23.8%) of drug trafficking offenders who recidivated had assault as their most serious new charge followed by drug trafficking and public order offenses.

  • Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics. Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9% of federal drug trafficking offenders released from prison over the same five-year period.

  • A federal drug trafficking offender’s Criminal History Category was closely associated with the likelihood of recidivism. But note that career offenders and armed career criminals recidivated at a rate lower than drug trafficking offenders classified in Criminal History Categories IV, V, and VI. (Related data and policy recommendations are discussed in the Commission's 2016 Report to the Congress on Career Offender Sentencing Enhancements.)

  • A federal drug trafficking offender’s age at time of release into the community was also closely associated with likelihood of recidivism.

February 21, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Sunday, February 19, 2017

"I sentenced criminals to hundreds more years than I wanted to. I had no choice."

13FRISK-master675The title of this post is the headline of this recent Washington Post commentary authored by former federal judge Shira Scheindlin. Here are excerpts from a lengthy piece that merits a full read:

In my nearly 22 years as a U.S. district judge in New York, I sentenced roughly 1,000 defendants. Thankfully, not all were subject to “mandatory minimum” sentences — in which Congress has imposed a required statutory punishment for a particular crime. But many were; 145 federal crimes still require a minimum sentence, including distribution of narcotics, immigration violations and identity theft, just to name a few.

Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.

This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system....

Judicial discretion in sentencing matters. Many judges, including me, routinely sentence below the guidelines, particularly for first-time, nonviolent drug offenders. Indeed, in 2015 only 36.5 percent of all drug offenses nationwide resulted in a guideline-compliant sentences. Between 2005 and May 2016, when I retired from the bench, I sentenced more than 200 defendants convicted of narcotics offenses and imposed a lighter-than-advised sentence more than 80 percent of the time. Had I sentenced at the top of the guidelines’ range, these defendants would have served more than a millennium of additional prison time.

After I left the bench, Peter Dubrowski — my last law clerk — and I decided that we would review the sentencing protocols for each of those 200 defendants. As I expected, we found strikingly similar storylines. The overwhelming majority of the defendants were indigent. Seventy-two percent had children to support, and many of the defendants were under the age of 25 — barely adults themselves. More than half had not graduated from high school, most had not obtained a GED, and barely 5 percent had attended college. A majority battled alcohol addiction, drug addiction or both, and had begun abusing substances by age 14. Most were unemployed. Most came from single-parent homes, and most had at least one parent who was, or had been, incarcerated....

Does the length of the sentence deter people outside the courtroom from committing crimes? This is a popular idea in our country. Over time, I came to believe it is fiction. If this effect was real, my fellow judges and I would have seen narcotics arrests and prosecutions decline over the years. They never did. No young man on the street was ever deterred from criminal activity by the sentence given to a buddy. “Contrary to deterrence ideology and ‘get tough’ rhetoric,” says a report from the Sentencing Project, a nonprofit that studies criminal punishment, the evidence “fails to support” deterrence.

February 19, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (11)

Wednesday, February 08, 2017

Prez Trump talks crime and support for law enforcement with police chiefs . . . and says some interesting things

Prez Donald Trump gave this lengthy speech to a gathering of major city police chiefs, and he had a lot to say about crime and law enforcement toward its conclusion (after an extended Trumpian discussion of the litigation surrounding his travel executive order).  Here is some of what the Prez has to say on the crime front (with a few points of emphasis added based on what struck me as especially interesting):

Right now, many communities in America are facing a public safety crisis.  Murders in 2015 experienced their largest single-year increase in nearly half a century. In 2016, murders in large cities continued to climb by double digits. In many of our biggest cities, 2016 brought an increase in the number of homicides, rapes, assaults and shootings. In Chicago, more than 4,000 people were shot last year alone, and the rate so far this year has been even higher. What is going on in Chicago?

We cannot allow this to continue. We’ve allowed too many young lives to be claimed -- and you see that, you see that all over -- claimed by gangs, and too many neighborhoods to be crippled by violence and fear.  Sixty percent of murder victims under the age of 22 are African American. This is a national tragedy, and it requires national action. This violence must end, and we must all work together to end it.

Whether a child lives in Detroit, Chicago, Baltimore, or anywhere in our country, he or she has the right to grow up in safety and in peace. No one in America should be punished because of the city where he or she is born. Every child in America should be able to play outside without fear, walk home without danger, and attend a school without being worried about drugs or gangs or violence.

So many lives and so many people have been cut short.  Their potential, their life has been cut short. So much potential has been sidelined. And so many dreams have been shattered and broken, totally broken. It’s time to stop the drugs from pouring into our country. And, by the way, we will do that. And I will say this: General, now Secretary, Kelly will be the man to do it, and we will give him a wall.  And it will be a real wall. (Applause.) And a lot of things will happen very positively for your cities, your states, believe me. The wall is getting designed right now....

It’s time to dismantle the gangs terrorizing our citizens, and it’s time to ensure that every young American can be raised in an environment of decency, dignity, love and support. You have asked for the resources, tools and support you need to get the job done. We will do whatever we can to help you meet those demands. That includes a zero tolerance policy for acts of violence against law enforcement. (Applause.)  We all see what happens. We all see what happens and what’s been happening to you. It’s not fair.

We must protect those who protect us. The number of officers shot and killed in the line of duty last year increased by 56 percent from the year before. Last year, in Dallas, police officers were targeted for execution –- think of this. Who ever heard of this? They were targeted for execution. Twelve were shot and five were killed. These heroic officers died as they lived -– protecting the innocent, rushing into danger, risking their lives for people they did not even know, but for people that they were determined to save. Hats off to you people....

[I]nstead of division and disunity -- and which is so much disunity -- we must build bridges of partnership and of trust. Those who demonize law enforcement or who use the actions of a few to discredit the service of many are hurting the very people they say that they want to help. When policing is reduced, crime is increased, and our poorest citizens suffer the most. And I see it all the time. When the number of police goes down, crime goes up.

To build needed trust between law enforcement and the communities they serve, it is not enough for us to merely talk to each other. We must listen to each other. All of us share the view that those in uniform must be held to the highest possible standard of conduct -- so important. ...

That is why our commitment to law and law enforcement also includes ensuring that we are giving departments the resources they need to train, recruit and retain talent. As part of our commitment to safe communities, we will also work to address the mental health crisis.  Prisons should not be a substitute for treatment. We will fight to increase access to life-saving treatment to battle the addiction to drugs, which is afflicting our nation like never ever before -- ever. (Applause.)

I've been here two weeks. I've met a lot of law enforcement officials. Yesterday, I brought them into the Oval Office. I asked a group, what impact do drugs have in terms of a percentage on crime? They said, 75 to 80 percent. That's pretty sad. We're going to stop the drugs from pouring in. We're going to stop those drugs from poisoning our youth, from poisoning our people. We're going to be ruthless in that fight. We have no choice. (Applause.)

And we're going to take that fight to the drug cartels and work to liberate our communities from their terrible grip of violence. You have the power and knowledge to tell General Kelly -- now Secretary Kelly -- who the illegal immigrant gang members are. Now, you have that power because you know them, you're there, you're local. You know the illegals, you know them by their first name, you know them by their nicknames. You have that power. The federal government can never be that precise. But you're in the neighborhoods -- you know the bad ones, you know the good ones.

I want you to turn in the bad ones. Call Secretary Kelly's representatives and we'll get them out of our country and bring them back where they came from, and we'll do it fast. You have to call up the federal government, Homeland Security, because so much of the problems -- you look at Chicago and you look at other places. So many of the problems are caused by gang members, many of whom are not even legally in our country.

I saw a few folks tweeting concerns this morning about Prez Trump's statement that we are "going to be ruthless in that fight" against "drugs from poisoning our youth, from poisoning our people."  And, with coming likely confirmation of AG Jeff Sessions, there is a very reasonable basis for fearing that the Trump Administration is going to seek to double-down on old tough-and-tougher approaches to the drug war.  But given some of the other Trump comments highlighted here (particular the comment that "prisons should not be a substitute for treatment"), I am holding out at least some hope that some nuance will be a part of the particulars of any new Trumpian drug war offensive.

February 8, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

Friday, February 03, 2017

Oklahoma Governor's task force urging significant sentencing reform to deal with surging prison population

As reported in this lengthy local article, "faced with a rapidly growing prison population in a state with the second-highest incarceration rate in the nation, a task force created by Oklahoma Gov. Mary Fallin issued a report Thursday calling for dramatic decreases in sentences for nonviolent drug dealers and manufacturers." Here is more:

Without reform, Oklahoma is on pace to add 7,218 inmates over the next 10 years, requiring three new prisons and costing the state an additional $1.9 billion in capital expenditures and operating costs, the report said. But task members said those costs can be averted and the prison population can be reduced 7 percent over the next decade through a combination of sentence reductions and other reforms, including increased funding for alternative mental health and substance abuse treatment programs.

Oklahoma currently has 61,385 individuals in its overcrowded prison system. That includes 26,581 incarcerated in state facilities and private prisons, 1,643 awaiting transfer from county jails and 33,161 on some form of probation, parole, community sentencing or GPS monitoring, said Terri Watkins, spokeswoman for the Department of Corrections.

Oklahoma's prison population, which is at 109 percent of capacity, has grown 9 percent in the past five years and is now 78 percent higher than the national average. Only Louisiana has a higher rate, the report said.

Oklahoma's female incarceration rate remains the highest in the nation, a distinction the state has held for 25 years, task members said. The state's female population grew 30 percent between 2011 and 2016 and Oklahoma now incarcerates women at a rate more than 2 1/2 times the national average.

In a 38-page report that contains 27 recommendations, the governor's task force on justice reform recommends a number of dramatic changes to stave off a looming state financial crisis, including sharply reducing sentences for nonviolent drug dealers and manufacturers. The report also calls for sweeping changes in the parole system, including allowing many inmates to become eligible for parole after serving a fourth of their sentences. Currently, inmates typically serve about a third of their sentences before becoming eligible for parole for most nonviolent crimes.

Many of the task force's recommendations would require legislative action. The task force is recommending that the penalty for possession of methamphetamine, heroin or crack cocaine with intent to distribute be lowered to zero to five years for nonviolent first-time felony drug offenders, said Jennifer Chance, the governor's general counsel and a member of the task force. It is recommending that the penalty for manufacturing be lowered to zero to eight years.

Possession of methamphetamine with intent to distribute currently carries a sentence of two years to life in prison for a first-time felony drug conviction, while possession of crack cocaine with intent to distribute carries a term of five years to life and heroin seven years to life.

Oklahoma's criminal justice system has exacerbated the state's prison crowding crisis by repeatedly sentencing more nonviolent offenders — particularly drug offenders — to longer terms than neighboring states like Texas and Missouri, the report says. Many states have been far ahead of Oklahoma in reforming their justice systems, the task force found. "Since 2010, 31 states across the country have decreased imprisonment rates while reducing crime rates," the report states.

Reducing Oklahoma prison sentences for nonviolent drug crimes is critical to reversing those trends because nearly a third of all Oklahoma prison admissions are for drug crimes and those prison sentences are often lengthy, the task force said.

Chance said most of the 21 task force members were in agreement with the group's findings, but acknowledged that the two district attorneys on the panel, David Prater and Mike Fields, have strong disagreements with some of the report's recommendations. Prater is the chief prosecutor for Oklahoma County, while Fields is the chief prosecutor for Canadian, Garfield, Blaine, Grant and Kingfisher counties and president of the Oklahoma District Attorneys Association....

If the state cuts prison sentences for drug manufacturing, distributing and trafficking without dramatically increasing funding for drug addiction treatment programs, Prater predicted it will lead to more home and auto break-ins and other crimes. "This is such a dishonest report," Prater said. "It's going to make Oklahoma a much more dangerous place."

Prater said the report's backers like to point to Texas as a state that has simultaneously reduced its incarceration and crime rates through similar justice reforms, but he noted that Texas appropriated $241 million up front in 2007 to pay for a package of prison alternatives that included more intermediate sanctions and substance abuse treatment beds, drug courts and mental illness treatment slots. Unless Oklahoma dramatically increases upfront funding for substance abuse treatment and parole supervision programs, the state's experience is more likely to parallel that of Utah, Prater said.

That state drastically cut sentences without providing sufficient funding for community programs and police officers and judges there have complained about offenders repeatedly being released out on the street with little or no supervision, he said.  Critics of Utah's reform efforts have cited the January 2016 slaying of Unified police officer Doug Barney as a reason for re-evaluating changes that were made. Barney's shooter, Corey Henderson, went through the revolving door of prison and many have argued he shouldn't have been out of jail when Barney was killed....

The Oklahoma Attorney General's Office was noncommittal about the report.  “The Attorney General's Office was invited to take part in the Oklahoma Justice Reform Task Force, and members of our team were in attendance," Lincoln Ferguson, spokesman for Atty. Gen. Scott Pruitt, said in a prepared statement.  "The AG's office takes no position on the merits or demerits of the proposal.”

The full report is an interesting read and is available here at this link.

February 3, 2017 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Saturday, January 28, 2017

An object lesson in what not to do when you find a big bale of cocaine in the ocean

A helpful reader flagged this somewhat amusing though still very serious sentencing tale of a not-so-old man and the sea.   The headline of the article provides the essentials: "Fla. fisherman who hauled in $500,000 worth of cocaine faces life in prison."  And here are some of the particulars:

Cocaine, more so than any other narcotic, is the drug most frequently interdicted by the U.S. Coast Guard. In late 2016, the Coast Guard announced it had seized about $2 billion worth of cocaine during a 10-week operation that began in October. (At 26.5 tons, the weight of the seized stimulant rivaled the bulk of four African bull elephants.) Water is the route of choice for drug runners. Some 95 percent of cocaine smuggling operations, a Coast Guard rear admiral told the BBC in 2015, involves traveling via boat.

In the Gulf Coast, a container vessel or freighter may serve as a mother ship, which offloads the drug to sailboats, go-fast cigarette boats, fishing boats and other smaller boats. “Fishermen are great mules because they know the waters and they don’t draw attention,” wrote journalist Erik Vance at Slate in 2013. “And if you have to chuck your haul overboard to avoid the military, other fishermen can dive to retrieve it.” And if the divers sent after the contraband cannot find it, perhaps someone else will.

In 2016, that someone else was Thomas Zachary Breeding. Breeding, 32, was a longline fisherman from Panama City, Fla. The fisherman had accumulated a few run-ins with the law, including drug and gun convictions, the Panama City News Herald reported. In 2012, a federal grand jury indicted Breeding for giving false statements to the National Oceanic and Atmospheric Administration. Prosecutors also alleged he obstructed the agency’s investigation into why the fisherman had entered grouper spawning grounds, closed to fishing; Breeding, they argued, deliberately sought to catch a valuable species of fish called gag grouper. He was sentenced to 15 months in prison.

But, until Breeding found the 45-pound cocaine bale, the fisherman said that he had kept a previously clean slate when it came to the narcotics trade. “I do not know where the drugs came from and haven’t ever been involved in the drug trade before. I was just a hard-working, young commercial fisherman,” Breeding wrote recently in a letter to the News Herald, penned from Florida’s Washington County Jail. “I was working as a long line boat captain out of Panama City when I found a package containing 20 kilos of cocaine.”

It was a what-if scenario of the type that fuels Florida crime potboilers: A fisherman finds a package of drugs valued at a huge street sum, and makes a decision. In Breeding’s case, he was 50 miles south of Panama City when he found between $500,000 and $650,000 of cocaine floating in the gulf. As impressive as the sum was, in the annals of washed-ashore cocaine — white lobster, as villagers along the Central American coast euphemize it — its street value was not a record. In 2013, five fishermen found $2.5 million of cocaine in the waters off north Florida. A metal tube filled with an estimated $5 million worth of cocaine washed up in Ireland last summer.

But it was an object lesson in what not to do. In December, Mark “The Shark” Quartiano, a celebrity Miami fisherman, found a kilogram brick of cocaine. He promptly alerted the authorities. Breeding did not. He instead handed over the 45-pound haul to four other people, on the condition they would sell the cocaine and pay a cut to Breeding. All five were caught in the summer — Breeding, a felon, had a firearm in his car when he was arrested — and faced conspiracy charges for the distribution of a controlled substance. Breeding pleaded guilty Wednesday, the News Herald reported, as did the other members of the network; they are awaiting a Feb. 16 sentencing. Breeding may be punished with up to life imprisonment and a fine in the millions of dollars.

January 28, 2017 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (3)

Tuesday, January 24, 2017

Split Colorado Supreme Court concludes federal law precludes state officers from returning marijuana to acquitted defendants

The Colorado Supreme Court yesterday issued an interesting ruling driven by the conflict between the state's marijuana reforms and federal prohibition. (SCOTUS fans might note the majority opinion was authored by Justice Allison Eid, who is on Prez Trump's (not-so-)short list.) Here are parts of how the majority opinion in Colorado v. Crouse, No. 2017 CO 5 (Colo. Jan 23, 2017) (available here), gets started:

The state’s medical marijuana amendment, article XVIII, section 14(2)(e) of the Colorado Constitution, requires law enforcement officers to return medical marijuana seized from an individual later acquitted of a state drug charge. The federal Controlled Substances Act (“CSA”) prohibits the distribution of marijuana, with limited exceptions. 21 U.S.C. §§ 801–971 (2012). The question in this case is whether the return provision of section 14(2)(e) is preempted by the federal CSA....

The CSA does not preempt state law on the same subject matter “unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903 (2012). The return provision requires law enforcement officers to return, or distribute, marijuana. Distribution of marijuana, however, remains unlawful under federal law. Thus, compliance with the return provision necessarily requires law enforcement officers to violate federal law. This constitutes a “positive conflict” between the return provision and the CSA’s distribution prohibition such that “the two cannot consistently stand together.”

Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) of the CSA immunizes only those officers who are “lawfully engaged in the enforcement of any law . . . relating to controlled substances.” 21 U.S.C. § 885(d) (2012) (emphasis added). This court has held that an act is “lawful” only if it complies with both state and federal law. Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 851. The officers here could not be “lawfully engaged” in law enforcement activities given that their conduct would violate federal law.

Here is part of the start of the dissent authored by Justice Gabriel:

Because I believe that the plain language of § 885(d) of the CSA, 21 U.S.C. § 885(d), immunizes federal and state officers from civil and criminal liability in the circumstances at issue here, I perceive no conflict between the CSA and section 14(2)(e) of article XVIII of the Colorado Constitution, nor do I believe that it is impossible to comply with both the CSA and the Colorado Constitution, as the majority implicitly and the People expressly contend.

Though not in any way related to this ruling, I cannot help but take this not-quite-perfect opportunity to share titles and links to some coverage of marijuana reform issues from my other major blog, Marijuana Law, Policy and Reform:

January 24, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5)

Thursday, January 19, 2017

Prez Obama wraps up his clemency work with 330 more commutations on his final full day in office

As reported here via USA Today, "President Obama commuted the sentences of 330 more federal inmates Thursday, capping an unprecedented clemency effort that has now released 1,715 prisoners — more than any other president in history."  Here is more:

The clemency grants announced on Obama's last full day in office set a one-day record. "Proud to make this one of my final actions as President.  America is a nation of second chances, and 1,715 people deserved that shot," Obama tweeted Thursday.

The clemency initiative, which began in 2014, was targeted at drug dealers who received mandatory-minimum sentences during the War on Drugs from the 1980s to the 2000s. But the effort ultimately fell far short of the 10,000 clemency grants former attorney general Eric Holder predicted when the initiative began. And while Obama set a record for granting commutations, he also set a record for denials.  As of the end of 2016, he had denied 14,485 petitions and closed another 4,242 without action — an overall grant rate of 5.9%, a couple of percentage points higher than many of his predecessors.

"The president set out to reinvigorate clemency, and he has done just that," White House counsel Neil Eggleston said in a statement.

It's unclear how big of a backlog in clemency cases President-elect Donald Trump will inherit.  But Justice Department officials had promised to give an up-or-down determination on every clemency initiative case it received by August.  “I’m proud to say we kept that promise," Deputy Attorney General Sally Q. Yates said in a statement. "This undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception."

Obama's final list of clemency grants included no more full pardons, meaning his final pardon tally will stand at 212 — fewer than any modern president except Presidents George H.W. Bush and George W. Bush. (It was the younger Bush who gave Obama this advice in the limo ride to the Capitol on his Inauguration Day eight years ago. "Announce a pardon policy early on, and stick to it.")

The grants on Thursday also did not include any of the more high-profile political cases, like former Illinois governor Rod Blagojevich, former Detroit mayor Kwame Kilpatrick, and former congressman Chaka Fattah, all serving time on corruption charges.

With Thursday's action, the Clemency Project 2014 also closes its doors.  The coalition of defense attorneys who had agreed to help inmates with their cases says it completed work on all the applications it received. "Of course we'd be delighted to continue, but we have to wait to see whether the next president says whether he will or will not pursue this," he said.

This NBC News coverage of the final grants and the recent history of Obama's clemency initiative closes with a useful account of its ups and downs:

Obama's clemency grants came in large batches, hundreds at a time, accompanied by statements that framed his effort as a bid to become the most merciful president of all time. But his denials were even more voluminous. The effect on applicants and their lawyers was like an emotional roller coaster.

On Wednesday, sandwiched between Obama's two ballyhooed clemency announcements, the Justice Department quietly released the names of more than 2,000 applicants who'd been denied.

James Felman, a Florida defense lawyer who represents dozens of inmates who applied for clemency, celebrated Tuesday when he learned that four had received commutations. On Wednesday, he learned that a dozen others had been denied, and he mourned. On Thursday, Felman was elated again, this time for four more clients who were on Obama's list. A dozen of Felman's clients still have heard nothing. Three are serving life sentences.

And then there's the matter of reform. Advocates point out that clemency does nothing to change policies that led to mass incarceration. Efforts to ease those laws beyond the 2010 changes have stalled in Congress.

Felman, who won commutation for 44 total clients, called Obama's initiative "the single most gratifying professional experience I've ever undertaken." He added: "I have so much gratitude for the president for having the courage and fortitude for doing this. But we know this is not a substitute for reforming the laws that got us here, and we still haven't accomplished that."

January 19, 2017 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Wednesday, January 18, 2017

Top Massachusetts court adopts "new protocol for case-by-case adjudication" of over 20,000 drug convictions tainted by misconduct of lab chemist

The Massachusetts Supreme Judicial Court today issues a huge new ruling to try to resolve a huge old problem caused by drug lab misconduct. The start of the opinion in Bridgeman v. District Attorney for the Suffolk District, No. SJC 12157 (Mass. Jan. 18, 2017)(available here), provides the back-story and the essential:

We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan's misconduct because the time and expense of case-by-case adjudication had become "untenable."  We declined at that time to adopt their proposed "global remedy."  However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan's misconduct but who have not yet sought relief from their drug convictions.  As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial.

After such reconsideration, we decline to adopt the district attorneys' argument that we should stay the course we had previously set and take no further action to protect the rights of the "relevant Dookhan defendants."  We also decline to adopt the petitioners' request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period.

We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment.  In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.  In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.  In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.  If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

We recognize that the implementation of this protocol will substantially burden the district attorneys, CPCS, and the courts.  But we also recognize that Dookhan's misconduct at the Hinton lab has substantially burdened the due process rights of many thousands of defendants whose convictions rested on her tainted drug analysis and who, even if they have served their sentences, continue to suffer the collateral consequences arising from those convictions.  And we recognize as well that, more than four years after Dookhan's misconduct was revealed, more than 20,000 defendants who are entitled to a conclusive presumption that egregious government misconduct occurred in their case have yet to receive adequate notice that they may have been victimized by Dookhan's misconduct, that they may file a motion to vacate their drug conviction, and that they have a right to counsel to assist them in the preparation of such a motion.  The remedy we order, challenging as it is to implement, preserves the ability of these defendants to vindicate their rights through case-by-case adjudication, respects the exercise of prosecutorial discretion, and maintains the fairness and integrity of our criminal justice system in the wake of a laboratory scandal of unprecedented magnitude.

January 18, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, January 10, 2017

Interesting new report on impact of Prop 47 on drug arrests in California

Via email I received notice of this notable new research report, titled "Declinining Drug Enforcement After Proposition 47," coming from the Center on Juvenile and Criminal Justice and the Drug Policy Alliance. This executive summary provides the report's highlights:

In November 2014, California took a significant step toward reforming mass criminalization and over-incarceration by passing Proposition 47, a law that changed certain low-level crimes from potential felonies to misdemeanors, prioritizing drug treatment over punishment. Prop 47 reclassified three drug possession offenses (possession of a narcotic, concentrated cannabis, or a non-narcotic) and reinvested state savings in direct services. In 2015, the first full year after Prop 47, felony drug arrests fell by over 92,000 while misdemeanor drug arrests increased by only 70,000. Taken together, these shifts produced a 10 percent decline in total drug arrests.

In response to Prop 47’s reclassification statute, some law enforcement departments began redirecting drug enforcement resources to community policing or the enforcement of other, more serious, offenses. Critics of the policy, however, claim that it limits police authority and constrains the effectiveness of drug control, a contention that has led some law enforcement agencies to deemphasize the enforcement of Proposition 47-related offenses.

This report seeks to understand how enforcement and prosecution of drug possession offenses have changed after Prop 47 by analyzing arrests and citations made by Los Angeles and San Diego law enforcement, and charges filed by county prosecutors. Some of the findings include:

Prop 47 reduced inconsistencies in the classification of drug possession offenses as felonies or misdemeanors.  Prior to Prop 47, qualifying drug possession offenses could be prosecuted as misdemeanors, felonies, or “wobblers.” After the passage of Prop 47, these offenses are filed as misdemeanors, eliminating prosecutorial discretion and the presence of “justice-by-geography,” which can disproportionately impact low income communities and communities of color.

Drug arrests and citations were increasing in the years immediately preceding Prop 47.  From 2010-2014, arrests and citations for Prop 47 drug possession offenses increased in 72 percent of law enforcement agencies in Los Angeles and San Diego counties. Between 2014-2015, 58 percent of agencies reported declines.

Arrests and citations declined after Prop 47, but varied by county, city, and substance.  For example, while both San Diego and Los Angeles counties experienced declines in arrests and citations, Los Angles reported a decrease of 45 percent while San Diego reported 7 percent decline.

January 10, 2017 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Sunday, January 01, 2017

Any astute thoughts about the sentencing year that was or the year that will be?

A variety of other (mostly non-work) engagements have prevented me from having the time to do any elaborate year-in-review or year-to-come posts about sentencing topics.  That said, as I take my 2016 calendars down and replace them with the 2017 versions, two matters come to mind that implicate both the year that was and the year to come:

1. SCOTUS transition: though representing only one vote, Justice Scalia's voice and impact on sentencing and criminal justice jurisprudence was far larger than his voting record.  The impact and import of his legacy and his absence, along with the coming character of his SCOTUS replacement, cannot be readily overstated.

2. Marijuana reform (but few other big sentencing reforms): with four more states voting for full recreational reform and nearly a dozen others enacting or enhancing medical regimes, in 2016 marijuana reform continued at a remarkable clip while broader drug war and other sentencing reform stalled (at least at the federal level). What the new GOP executive leaders in DC will now do on these fronts is among the most interesting and dynamic and uncertain story to watch in 2017.

As always, I welcome reader throughout on these topics and any others about the year that ended yesterday or the new one getting started today.

January 1, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Who Sentences? | Permalink | Comments (5)

Thursday, December 29, 2016

"Clemency seeker to Obama: please don't forget us"

The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson.  Here is how it gets started and concludes:

The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories.  I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.

In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison.  Since I went to prison, the laws governing my wrong-doing have changed.  If I were convicted again today for the same crime, my life might look very different.

Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies.  My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?

For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long.  But my faith in God has carried me this far.  Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...

I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs.  This was a road I never dreamed of venturing down.  I became what is called a telephone mule, passing messages between the distributors and sellers.  I participated in a drug conspiracy and I was wrong.

My trial took a toll on my family.  At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial.  Tretessa had a good paying job with Motorola and was flying down to support me.  Members of the community were at my hearings encouraging me and hoping for the best.

But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday.  It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake.  The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners.  I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.

During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison.  And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system.  My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it.  It a source of strength and hope for me -- a chance to be free.

The President has made an incredible push at helping to right the wrongs of our criminal justice system.  I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes.  But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly.  I hope his administration will process all the applications for clemency currently waiting for the President's review.

No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars.  God has shown me my strength.

December 29, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 25, 2016

Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts

Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours."  I recommend the full piece and here are some excerpts:

President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office....  Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.”  Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse.  Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best.  As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....

[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary.  If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars.  As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met.  To give a list of names would exclude too many people.”...

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed.  The stories are all too familiar.  They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes.  They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime.  People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with.  What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act.  Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record.  The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited.  But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice.  And the state has not even begun to account for its own mistakes.

I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.

The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.

Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.

December 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 19, 2016

Prez Obama grants another large bunch of commutations as well as a big batch of pardons

Big pre-holiday news on the federal clemency front is reported in this new White House blog posting: "President Obama Grants 153 Commutations and 78 Pardons to Individuals Deserving of a Second Chance." Here are the details as reported by White House Counsel Neil Eggleston:

Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.

The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.

Today’s grants signify the President’s continued commitment to exercising his clemency authority through the remainder of his time in office. In 2016 alone, the President has granted clemency to more than 1,000 deserving individuals. The President continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the President will issue more grants of both commutations and pardons before he leaves office. The mercy that the President has shown his 1,324 clemency recipients is remarkable, but we must remember that clemency is a tool of last resort and that only Congress can achieve the broader reforms needed to ensure over the long run that our criminal justice system operates more fairly and effectively in the service of public safety.

This news is sure to bring holiday cheer to all those advocating for Prez Obama to go big on this front before he heads home.  These grants now have me thinking Obama may end his time in office with more than 2000 clemency grants.

Some recent (post-Election Day) posts on Prez Obama and clemency:

December 19, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, December 15, 2016

Interesting review of impact of Prop 47 on drug cases and offenders in California

Prop-47-jpgThis lengthy local article takes a remarkable and effective deep dive into the impact and import of California's Prop 47 two years after its passage. The piece carries a lengthy headline that serves as a kind of summary: "Two years after Prop 47, addicts walk free with nowhere to go: In 2014, California Voters Freed About 13,500 Low-Level Offenders From Crowded Prisons and Jails. But Many Ex-inmates Have Traded Incarceration for a Cycle of Homelessness, Drug Abuse and Petty Crime." Here are excerpts:

Two years after it was approved by California voters, Prop 47 has scaled back mass incarceration of drug addicts, but successful reform is woefully incomplete.  Proponents celebrate how the law freed at least 13,500 inmates like Lopez from harsh sentences in crowded prisons and jails, but Prop 47 has done little to help these people restart their lives. Instead, the unprecedented release of inmates has exposed the limits of California’s neglected social service programs: Thousands of addicts and mentally ill people have traded a life behind bars for a churning cycle of homelessness, substance abuse and petty crime.

Prop 47 earmarked millions saved in prison costs for inmate rehabilitation, but not a penny has been spent. Meanwhile, the state’s shortage of treatment programs is more glaring than ever. Expanding rehab would be expensive, but it is still a cheaper, more effective and more humane strategy for addressing addiction than locking drug abusers in prison.

"The problem is, if you don’t actually do anything to change conditions of their lives, they’re going to be back on the streets anyway," said Elliot Currie, a University of California, Irvine criminologist.  "What’s to prevent them from going back to the same old ways when they get out? The answer is nothing."

This alarming lack of support services is one key finding in a landmark investigation by USA TODAY Network-California journalists who spent seven months analyzing the impacts of Prop 47, a sweeping criminal justice reform law that has been debated and demonized but rarely understood. To uncover the ramifications of the law, reporters from four publications — The Desert Sun, The Ventura County Star, The Record Searchlight and The Salinas Californian — filed 65 records requests, scrutinized thousands of pages of public documents and performed over 50 interviews with policymakers, academics, police, district attorneys, public defenders, drug addicts and former felons. Among our findings:

  • California police have dramatically deprioritized drug busts in the wake of Prop 47, arresting and citing about 22,000 fewer people in 2015, a 9.5 percent decrease in the first year since the possession of meth, heroin and cocaine was downgraded to a misdemeanor.

  • Nearly 200,000 felony convictions have been retroactively erased by Prop 47 as of September, according to a first-ever analysis.  Government agencies were not required to track how many convictions were reduced, so journalists gathered public records from 21 counties to calculate a statewide estimate.  Many former felons will be slow to take advantage of their restored rights because they are unaware their convictions have been downgraded.

  • For those who are aware, however, Prop 47 offers an unparalleled chance for better jobs.  Tens of thousands of people no longer have to report felony convictions on job applications, making them drastically more employable than they’ve been in years or decades.

Michael Romano, a Stanford law expert who helped write Prop 47, stressed in a recent interview the law has been "amazingly successful" in its primary goal, which was always to get low-level drug offenders out of California’s crowded, damaging prison system.  But tackling drug addiction and mental illness, which plague so many who were released under the law, is a task that will require investing hundreds of millions of dollars in community treatment programs across the state.   "It is incumbent on local governments to engage this problem," Romano said. "Prop 47 was not a cure-all. It’s not a panacea.  It is one piece in an extraordinarily complicated puzzle — perhaps the most complicated puzzle in our communities."

December 15, 2016 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Sunday, December 11, 2016

Nobel Peace Prize winner suggests that drug war may be most harmful of all wars currently being waged, combines

The BBC News account of this weekend's Nobel Prize awards highlights a notable comment from a notable Nobel laureate.  The article is headlined "Nobel Peace Prize: Santos calls for 'rethink' of war on drugs," and here are some excerpts:

The President of Colombia, Juan Manuel Santos, has used his Nobel Peace Prize acceptance speech to call for the world to "rethink" the war on drugs. He said the zero-tolerance policy might be "even more harmful" than all the other wars being fought worldwide.

Mr Santos's government and the country's biggest rebel group, the Farc, signed a peace deal last month.  Bob Dylan, the first songwriter ever to receive the Nobel literature prize, did not collect his award in person. He received a standing ovation nevertheless.

The conflict with the Farc rebels in Colombia has killed more than 260,000 people and left millions internally displaced. Accepting the prize for his efforts in the peace process, Mr Santos paid tribute to the families of victims of the conflict. He said the "great paradox" of peacemaking was that "the victims are the ones who are most willing to forgive, to reconcile and to face the future with a heart free of hate".

In a deviation from his prepared remarks, he asked the representatives of the victims present to stand and be recognised for their own efforts in the peace process, to much applause. He previously pledged to donate the prize money -- eight million Swedish krona ($925,000) -- to help the conflict's victims. "I have served as a leader in times of war -- to defend the freedom and the rights of the Colombian people -- and I have served as a leader in times of making peace," he said. "Allow me to tell you, from my own experience, that it is much harder to make peace than to wage war."

Mr Santos said it was "time to change our strategy" on drugs, and that Colombia had "paid the highest cost in deaths and sacrifices" in the so-called war on drugs. The term, coined by US President Richard Nixon more than four decades ago, refers to US-led efforts to stop drug production at its source. In Latin America this has included on-the-ground policing, and fumigation of coca fields from the air.

"We have moral authority to state that, after decades of fighting against drug trafficking, the world has still been unable to control this scourge that fuels violence and corruption throughout our global community," he said. "It makes no sense to imprison a peasant who grows marijuana, when nowadays, for example, its cultivation and use are legal in eight states of the United States.

"The manner in which this war against drugs is being waged is equally or perhaps even more harmful than all the wars the world is fighting today, combined."

December 11, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, December 10, 2016

U.S. Supreme Court adds federal drug-offense forfeiture case to its docket

As reported here at SCOTUSblog, on Friday afternoon "the justices issued orders from [their] private conference, adding one new case to their merits docket for the term."  That new case concerns a criminal justice/sentencing issue, forfeiture, that has been a focal point of concerns for reform activists across the political spectrum.  Here are the details from SCOTUSblog about the forfeiture case now before the Justices on the merits:

They agreed to review the case of Terry Honeycutt, who worked as a salaried employee at a hardware store owned by his brother, Tony.  The two brothers were charged with federal drug crimes for the store’s sale of an iodine-based water disinfectant -- which can also be used to make methamphetamines.  Tony pleaded guilty and forfeited $200,000 to account for the proceeds of the illegal sales.  After Terry went to trial and was convicted, the government argued that he should have to forfeit the rest of the proceeds, approximately $70,000.

Terry countered that he should not have to forfeit the remaining proceeds because he did not own the store and therefore did not receive them.  The district court agreed, but the U.S. Court of Appeals for the 6th Circuit reversed. It ruled that Terry could be held independently liable for the store’s proceeds from the sales even if the funds never actually reached him.

The federal government acknowledged that the courts of appeals are divided on the question presented by Terry’s appeal. It nonetheless urged the justices to deny review, explaining that the split among the circuits is “lopsided and recent.”  And in any event, it contended, Terry’s case is not a good one in which to consider that question, because he would also be liable for the forfeiture under the conflicting rule adopted by the U.S. Court of Appeals for the District of Columbia Circuit.

Despite the government’s objections, the justices granted certiorari [and] Honeycutt v. United States will likely be argued in the spring, with a decision by the end of June.

December 10, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, December 09, 2016

As opioid deaths officially surpass gun homicides, will national leaders continue to ignore potential live-saving benefits of medical marijuana?

The question in the title of this post is prompted by this new Washington Post Wonkblog piece, which starts by noting that "opioid deaths continued to surge in 2015, surpassing 30,000 for the first time in recent history, according to CDC data released Thursday." Here is more of the grim data:

That marks an increase of nearly 5,000 deaths from 2014. Deaths involving powerful synthetic opiates, like fentanyl, rose by nearly 75 percent from 2014 to 2015. Heroin deaths spiked too, rising by more than 2,000 cases. For the first time since at least the late 1990s, there were more deaths due to heroin than to traditional opioid painkillers, like hydrocodone and oxycodone....

In a grim milestone, more people died from heroin-related causes than from gun homicides in 2015. As recently as 2007, gun homicides outnumbered heroin deaths by more than 5 to 1. These increases come amid a year-over-year increase in mortality across the board, resulting in the first decline in American life expectancy since 1993.

Congress recently passed a spending bill containing $1 billion to combat the opioid epidemic, including money for addiction treatment and prevention. "The prescription opioid and heroin epidemic continues to devastate communities and families across the country — in large part because too many people still do not get effective substance use disorder treatment,” said Michael Botticelli, Director of National Drug Control Policy, in a statement. "That is why the President has called since February for $1 billion in new funding to expand access to treatment."

Much of the current opioid predicament stems from the explosion of prescription painkiller use in the late 1990s and early 2000s.  Widespread painkiller use led to many Americans developing dependencies on the drugs.  When various authorities at the state and federal levels began issuing tighter restrictions on painkillers in the late 2000s, much of that demand shifted over to the illicit market, feeding the heroin boom of the past several years.

Drug policy reformers say the criminalization of illicit and off-label drug use is a barrier to reversing the growing epidemic. “Criminalization drives people to the margins and dissuades them from getting help,” said Grant Smith, deputy director of national affairs at the Drug Policy Alliance. “It drives a wedge between people who need help and the services they need. Because of criminalization and stigma, people hide their addictions from others.”

These depressing data spotlight one of many reasons I am supportive of medical marijuana reforms for the treatment of pain. It is functionally impossible to die from an overdose of marijuana, and thus it will always be in some important ways safer for someone to become dependent on marijuana rather than on opioids for pain relief. In addition, as highlighted in a number of posts from my other blog, there is considerable research emerging from various sources that the opioid epidemic is somewhat less deadly in states that have robust medical marijuana programs.

Some related posts from Marijuana Law, Policy and Reform:

December 9, 2016 in Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (2)

Wednesday, December 07, 2016

Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform

NA-CM623_SESSIO_16U_20161206163606The Wall Street Journal has this new article flagging the sentencing reform work of Senator Jeff Sessions, who is Prez-Elect Donald Trump's pick to serve as our next Attorney General. The article is headlined "Jeff Sessions, Civil-Rights Groups Find Some Common Ground on Crack Sentencing: Attorney-general pick, targeted for his record on race, advocated for parity in cocaine punishments." Here are excerpts:

Civil-rights groups are set to battle Sen. Jeff Sessions’s nomination as attorney general over what they see as his disturbing record on racial equality. But there is one chapter in the former prosecutor’s career where they share a sliver of common ground.

Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime. There has been a growing consensus that harsh penalties for crack, typically bought and sold on city streets, have taken an undue toll on African-American communities, while black leaders have long viewed the disparity as little short of racist.

To Mr. Sessions’s critics, the issue doesn’t come close to compensating for his career-long opposition to expanding civil-rights protections and reducing mandatory sentences, and more broadly for what they see as a general indifference to issues important to minorities.

But to the Alabama senator’s supporters, it is an overlooked part of a résumé they say is sometimes caricatured. “This was a personal agenda item for him,” said Matt Miner, Mr. Sessions’s former chief counsel. “This law was not calibrated to target serious drug dealers and was disproportionately affecting African-Americans, and it offended him.”

In a rare bipartisan move, Mr. Sessions and Democratic Sen. Dick Durbin of Illinois ultimately struck a deal in 2010 to reduce, though not eliminate, the sentencing disparity. Mr. Sessions hung a copy of the resulting legislation, signed by President Barack Obama, in a prominent spot in his office next to his desk, Mr. Miner said....

In 1995, the U.S. Sentencing Commission tried to put the sentencing guidelines on par, but Congress rejected the proposal. Weeks later, riots broke out in the federal prison in Talladega, Ala., and spread to other federal facilities, an uprising the Bureau of Prisons attributed partly to Congress’s rejection of the cocaine measure. Mr. Sessions, then Alabama’s attorney general, was elected to Congress the following year. His first sentencing bill, in 2001, lowered the sentencing disparity to 20-to-1.

Mr. Sessions declined to comment for this article. But he told The Wall Street Journal at the time that the crack penalties were unfair and in many cases made cities less safe, not more so. On the Senate floor, he cited studies showing that African-Americans made up 84% of defendants sentenced for trafficking crack but only 31% of those sentenced for powder. “The five-gram trigger point for crack that was intended to protect African-Americans has resulted in heavy penalties for African-Americans, penalties that lack a rational basis,” Mr. Sessions said in 2002. He reintroduced the proposal in 2006 and 2007.

The Fair Sentencing Act, ultimately signed into law in 2010, raised the trigger for a five-year sentence to 28 grams of crack and the 10-year trigger to 280 grams of crack. The triggers for powder cocaine remained at 500 and 5,000 grams.

Advocates for criminal-justice changes aren’t expecting much support from Mr. Sessions on some of their other priorities. “It’s not entirely clear why he supported the Fair Sentencing Act,” said Marc Mauer, executive director of the Sentencing Project, which worked with Mr. Sessions on the issue for years. Mr. Sessions has opposed efforts to reduce sentences for nonviolent drug offenders and to investigate law-enforcement agencies accused of violating civil rights.

Others are even more downbeat.

“He has taken positions so diametrically opposed to civil and human rights that there is little hope he would bring the sense of hope and openness he brought to the Fair Sentencing Act to the job of attorney general,” said Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights. “I consider it a one-off where he could show he was more enlightened and less doctrinaire than some of his colleagues.”

Mr. Henderson’s group is one of 145 organizations that signed a letter opposing Mr. Session’s nomination. The letter cites racially insensitive remarks allegedly made by Mr. Sessions; his unsuccessful prosecution of three black voting-rights activists on fraud charges; his support for voter ID laws that many activists say are designed to tamp down minority voting; and his opposition to a 2009 law expanding federal prosecution of hate crimes....

Kevin Ring, vice president of Families Against Mandatory Minimums and himself a former offender, said he hopes Mr. Sessions will at least leave discretion to federal prosecutors rather than ordering them to seek maximum penalties. “I’m looking for a silver lining,” he said.

A few prior related posts on Senator Sessions and sentencing reform:

December 7, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

"How Tough on Crime Became Tough on Kids: Prosecuting Teenage Drug Charges in Adult Courts"

The title of this post is the title of this notable new report from The Sentencing Project. Here is its Introduction:

Transfer laws in 46 states and the District of Columbia permit youth to be tried as adults on drug charges.

Successful campaigns to raise the age of juvenile court jurisdiction have rolled back some excesses of the tough on crime era.  After the implementation of Louisiana’s SB 324 in 2017 and South Carolina’s SB 916 in 2019, just seven states will routinely charge 17-year old offenders as adults, including the two states that also charge 16-year olds as adults.  Despite other state laws that differentiate between adults and youth, placing limits on teens’ rights to serve on juries, vote, or marry without parental consent, the criminal justice system in these jurisdictions erases the distinction when they are arrested.

Though the vast majority of arrested juveniles are processed in the juvenile justice system, transfer laws are the side door to adult criminal courts, jails, and prisons.  These laws either require juveniles charged with certain offenses to have their cases tried in adult courts or provide discretion to juvenile court judges or even prosecutors to pick and choose those juveniles who will be tried in adult courts.

It is widely understood that serious offenses, such as homicide, often are tried in adult criminal courts.  In fact, for as long as there have been juvenile courts, mechanisms have existed to allow the transfer of some youth into the adult system 2 During the early 1990s, under a set of faulty assumptions about a coming generation of “super-predators,” 40 states passed legislation to send even more juveniles into the adult courts for a growing array of offenses and with fewer procedural protections.  The super-predators, wrote John J. DiIulio in 1995, “will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”

This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts.  Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges.  Only Connecticut, Kansas, Massachusetts, and New Mexico do not.  States have taken steps to close this pathway, including a successful voter initiative in California, Proposition 57.  Nationwide, there were approximately 461 judicial waivers (those taking place after a hearing in juvenile court) in 2013 on drug charges.  The totals stemming from other categories of transfer are not available.

From 1989 to 1992, drug offense cases were more likely to be judicially waived to adult courts than any other offense category.  Given the recent wave of concern over opiate deaths, it is reasonable to fear a return to this era, even as public opinion now opposes harsh punishments for drug offenses.

The ability of states to send teenagers into the adult system on nonviolent offenses, a relic of the war on drugs, threatens the futures of those teenagers who are arrested on drug charges, regardless of whether or not they are convicted (much less incarcerated) on those charges.  Transfer laws have been shown to increase recidivism, particularly violent recidivism, among those convicted in adult courts.  Research shows waiver laws are disproportionately used on youth of color. Moreover, an adult arrest record can carry collateral consequences that a juvenile record might not.  Since very few criminal charges ever enter the trial phase, the mere threat of adult prison time contributes to some teenagers’ guilty pleas. This policy report reviews the methods by which juveniles can be tried as adults for drug offenses and the consequences of the unchecked power of some local prosecutors.

December 7, 2016 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, November 30, 2016

"An Incubator for (Former) Drug Dealers: 'Hustlers are entrepreneurs denied opportunity'"

Some tough-on-crime folks who still love fighting the drug war remain eager to assert that any and all drug dealers are all vicious and violent criminals in waiting.  For example, in this new commentary, Bill Otis argues we must not now "lighten up on non-violent, low-level drug dealers" because, in his words, "drug dealing is an inherently violent business; an affable transaction today is tomorrow's bloody shootout" and "we cannot reliably tell who is violent and who isn't."  

Based on the bloody history of alcohol Prohibition in the 1920s and recent nonviolent experiences with legalized marijuana markets out west, I have a much different perspective on drug dealing.  Most bootleggers a century ago and many drug dealers today seem really to be street-level entrepreneurs who pursue black-market economic opportunities and who turn to violence only if black market conditions require the use of force.  

Intriguingly, this notable new Bloomberg BusinessWeek piece which carries the headline that is also the title of this post, reports on reentry programming that seems to confirm my perspective on most drug dealers.  I recommend the piece in full, and here are excerpts:

Over the past decade, a number of government, academic, and nonprofit programs have attempted to address the structural problems that face convicts when they’re released from prison — a campaign known as the “re-entry movement.”  One of the biggest contributors to misery and recidivism is an inability to find steady work. Former inmates encounter stigma, bias, and even formal obstacles to getting hired. Connecticut, for example, has 423 employment restrictions based on criminal records, including bans on obtaining a teaching certificate, operating commercial motor vehicles, and becoming a firefighter.

Amid calls for more job training, less automatic background searching, and other changes that would make it easier for ex-felons to become employees, an alternative idea has slowly taken hold: Encourage them to start their own businesses.  The largest nonprofit pushing entrepreneurism of this kind is Defy Ventures, based in New York, which over the past six years has trained more than 500 formerly incarcerated people and incubated more than 150 successful startups.  Defy has become a critical darling among social scientists, boasting a 3 percent recidivism rate among alumni, compared with the national average of 76 percent of released inmates who are reincarcerated within five years....

On the morning of July 9, a year to the day after he shed his prison uniform for street clothes, Bashaun Brown stood in a rented conference room. Beside him were two colleagues, both undergraduates at nearby Wesleyan University, and seated before him were four aspiring entrepreneurs.  This was a meeting of TRAP House, Brown’s creation, an incubator for former drug dealers who want to start legal companies.  The name stands for “transforming, reinventing, and prospering” and is a play on the term for drug-stash locations....

Brown’s premise with TRAP House is that “hustlers are entrepreneurs denied opportunity.” The agenda for class that day included honing elevator pitches, gaining access to seed capital, and calculating financial projections. Brown flipped through slides projected on a screen behind him from his laptop, a silver MacBook with busted hinges and a decal of Shel Silverstein’s The Giving Tree. Angel investors, Brown told the group, are “a group of true capitalists who use money to make money. Like how some people live off the thrill of dealing drugs, these guys live off the thrill of that flip.”...

Brown later told me that as he sees it, drug dealers have more business savvy than they realize. “If I’m talking about marketing research, I would tell the guys, ‘Listen, you have done this before,’ ” he said. “ ‘You didn’t just come to your ’hood and set up shop. No, you have to do some kind of research. What type of drugs do they want to buy? What price would they buy it for? How much would I make?’ ” The same is true of gauging risk. In addition to the potential of economic loss, a hustler must “look at the odds of getting caught and then do an analysis,” Brown said. “Most people say that criminals are irrational. But when it comes to selling drugs, it’s a highly rational choice.” He kept riffing on such topics as team-building and customer relations. “The better drug dealers I know have great interpersonal skills,” he said.

November 30, 2016 in Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (3)

Monday, November 28, 2016

Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?

Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform.  Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.

That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here.  Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place.  During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department.  So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted.  Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015). 

I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders.  Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider.  The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular.  But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.

Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation.  I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review.  Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.

I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons).  But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.

November 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Saturday, November 26, 2016

So many marijuana reform developments and questions, with so many more on 2017 horizon

Though I blogged a bit in this space about marijuana reform right around the election (see here and here), over the last few weeks I have been content to cover this issues just over at Marijuana Law, Policy & Reform.  But this new post about this new article about the thousands of Californians getting sentencing relief thanks to the state's passage of a major marijuana legalization proposition, Prop 64, reminded me that I should be reminding readers about the close links between marijuana reform in particular and sentencing reform in general.  

The first post linked below tells the sentencing reform story, and some other postings from my other blog tell a whole lot of other interesting and dynamic stories about the current state and possible future of marijuana reform in the United States:

November 26, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, November 21, 2016

"Four Ways Drug Policy Reformers Must Play It Smart Under the Trump Administration"

The title of this post is the headline of this notable new commentary by Bill Piper, which gets started this way:

I began working, advocating and lobbying for federal-level drug policy reform in Washington, DC in the last year of Bill Clinton’s presidency. I’ve continued to do so ever since: I was a loyal soldier in the war against the War on Drugs through eight years of George W. Bush and then eight years of Barack Obama. But now, with the election of Donald Trump, it feels like the work during those three presidencies was just basic training—the real challenge is just beginning.

Like many people, I’m still trying to wrap my mind around the very idea of Donald Trump as president. But what’s certain is that drug policy reformers are going to have to play it smart in the new era, and I do have some initial thoughts.

First, we’re in uncharted territory. We have never had a president like this—so far removed from establishment norms, openly promoting white supremacy, believing in and promoting wacko conspiracy theories. Complicating matters, he doesn’t seem to have fixed positions, rarely gives specifics and contradicts himself often. No one knows for sure what exactly to expect, but we should assume the worst.

His administration, which looks set to be staffed by drug-war extremists, could go after state marijuana laws. Instead of just opposing sentencing reform, they could push for new mandatory minimums. They might demonize drugs and drug sellers to build support for mass deportations and a wall. Trump’s law-and-order rhetoric could fundamentally alter the political environment, nationally and locally.

Right now there is a bipartisan consensus in favor of reducing incarceration—that consensus is in danger. We could be set back decades if we’re not careful. We need to rethink a lot of what we’ve been planning and think about how we message. And it’s more important than ever that we support our allies in other movements and stand strong for racial justice. We need to re-learn how to play defense.

November 21, 2016 in Criminal justice in the Trump Administration, Drug Offense Sentencing | Permalink | Comments (2)

Friday, November 18, 2016

So who is happy or sad about Jeff Sessions for Attorney General?

consider this an open thread.

UPDATE:  I just remembered that Senator Jeff Sessions was long an advocate for equalizing crack and powder cocaine sentences.  Through the FSA enacted in 2010, the notorious 100-1 crack/powder ratio was reduced to roughly 18:1.  I would think it very valuable and very wise for various folks interested in drug sentencing reform to unearth and promotes just what Senator Sessions said in the past on this front.

November 18, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (38)

Sunday, November 13, 2016

"Hard Bargains: The Coercive Power of Drug Laws in Federal Court"

11_HardBargainsThe title of this post is the title of this soon-to-be released book by Mona Lynch that is now at the very top of my holiday wish/reading list. Here is the publisher's description of the book:

The convergence of tough-on-crime politics, stiffer sentencing laws, and jurisdictional expansion in the 1970s and 1980s increased the powers of federal prosecutors in unprecedented ways.  In Hard Bargains, social psychologist Mona Lynch investigates the increased power of these prosecutors in our age of mass incarceration.  Lynch documents how prosecutors use punitive federal drug laws to coerce guilty pleas and obtain long prison sentences for defendants — particularly those who are African American — and exposes deep injustices in the federal courts.

As a result of the War on Drugs, the number of drug cases prosecuted each year in federal courts has increased fivefold since 1980.  Lynch goes behind the scenes in three federal court districts and finds that federal prosecutors have considerable discretion in adjudicating these cases.  Federal drug laws are wielded differently in each district, but with such force to overwhelm defendants’ ability to assert their rights.  For drug defendants with prior convictions, the stakes are even higher since prosecutors can file charges that incur lengthy prison sentences — including life in prison without parole.

Through extensive field research, Lynch finds that prosecutors frequently use the threat of extremely severe sentences to compel defendants to plead guilty rather than go to trial and risk much harsher punishment.  Lynch also shows that the highly discretionary ways in which federal prosecutors work with law enforcement have led to significant racial disparities in federal courts.  For instance, most federal charges for crack cocaine offenses are brought against African Americans even though whites are more likely to use crack.  In addition, Latinos are increasingly entering the federal system as a result of aggressive immigration crackdowns that also target illicit drugs.

Hard Bargains provides an incisive and revealing look at how legal reforms over the last five decades have shifted excessive authority to federal prosecutors, resulting in the erosion of defendants’ rights and extreme sentences for those convicted.  Lynch proposes a broad overhaul of the federal criminal justice system to restore the balance of power and retreat from the punitive indulgences of the War on Drugs.

November 13, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Tuesday, November 08, 2016

In Oklahoma, ballot initiative on death penalty wins big and sentencing reform initiatives also win

Though hard to figure out from just looking at this official Oklahoma election page, it appears that all the sentencing ballot issues being considered by voters passed:

State Question 776 has won 66.5% to 34.5%, thereby amending the Oklahoma Constitution to guarantee the state’s power to impose capital punishment and set methods of execution.

State Question 780 has won 58% to 42%, thereby reclassifying certain state property offenses and simple drug possession as misdemeanor crimes.

State Question 781 as won 56% to 44%, thereby taking the savings from reclassifying certain offenses to fund rehabilitative programs, including substance abuse and mental health treatment programs.

November 8, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, November 03, 2016

Notable new analysis of marijuana arrest rates and patterns acorss the nation

This new post at Marijuana.com, under the headline "Marijuana Decrim Doesn’t Stop Discrimination, New Data Shows," appears to be reporting and analyzing some important new data on the impact of marijuana reform on some key criminal justice metrics.  Here are excerpts from the lengthy entry:

Marijuana arrest rates are plummeting as a growing number of far-reaching state policy reforms like legalization and decriminalization are enacted; however, stark racial disparities in cannabis law enforcement remain, a new Marijuana.com analysis of policing data uncovers. The data provided an illuminating follow-up to the 2013 American Civil Liberties Union report which made headlines by showing that, while African Americans and whites use marijuana at roughly equivalent rates, blacks are much more likely to be arrested for it.

Public records requests submitted via MuckRock to all 50 states for data pertaining to marijuana-related arrests show, on average, a significant decrease in possession offenses in the years since the publication of the ACLU report, which was based on 2010 data. But despite the apparent shift in focus away from the enforcement of marijuana possession laws, the racial bias in arrest rates uncovered by the ACLU remains intact.

The new data also revealed that decriminalization measures may have become an unintentional barrier to transparency in marijuana law enforcement. The classification of marijuana as a less serious offense in many states has resulted in a deprioritization of tracking critical information regarding who is stopped, and how often.

Among the key findings of the new Marijuana.com analysis are:

  • In New York, despite significant drops in arrests for misdemeanor possession of marijuana, black people are more than 13 times as likely as white people to be arrested for it.
  • Despite significant drops in overall arrest rates, Florida increased the number of people arrested for marijuana possession since 2010.
  • States with a large racial disparity in arrests – New York, North Carolina and South Carolina – also tend to be the states with higher overall arrest rates.
  • The largest drops in overall arrest rates since 2010 occurred in Nevada, Alaska, Connecticut and New York.

In all, data were received from 25 states; 12 states provided arrest numbers for local and state police — many not filtered by agency — while 13 either separated local and state police data or provided numbers only for state police. The remaining states for which data were not obtained either do not keep track of marijuana offenses as distinct from other drug-related crimes, do not keep track of marijuana offenses on a state level or charged prohibitively high fees for the same data which other states provided for free.....

The data we are able to report here do not tell the whole story of marijuana users’ clash with the law in this age of decriminalization and legalization. Public opinion toward marijuana has shifted dramatically, particularly within the last several years. A few states have legalized possession of small amounts, while others have instead opted to reclassify possession of similar amounts from felonies to misdemeanors or from misdemeanors to civil infractions, to reflect this change in perception.

While this shift has been a laudable victory for advocates pushing for full legalization of recreational use, it has also resulted in increased difficulty in tracking important data. Finding the answer to a relatively simple question, such as, “How many people in this state were caught with marijuana in the year 2014?” has become all the more arduous. Researchers are forced to track down data for misdemeanors and felonies at the state level in addition to approaching individual law enforcement agencies directly for data on civil infractions, hoping they keep track of those numbers at all.

Consequently, the data reported here reflect only the marijuana possession offenses which are reported at the state levels; the number of civil infractions in states which have decriminalized possession are evidenced only by the significant drop in arrest rates (misdemeanors) following such a change in the law....

Taken as a whole, the new numbers obtained by Marijuana.com add to the debate about the effects of both prohibition and the decriminalization policies that advocates have succeeded in enacting in a growing number of jurisdictions, and the data (or in some cases lack thereof) shed light on the difficulty in tracking many of those effects.

I find this report and its data quite interesting, but it is a bit opaque and ultimately further convinces me that one of the first (and non-controversial?) priorities for the new federal administration should be to try to collect and analyze data on modern marijuana enforcement nationwide . Of course, I think a priority for everyone interested in the marijuana reform space must include checking out my other blog where you can find these recent posts on various related topics:

November 3, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (0)

Wednesday, October 26, 2016

Famous "war on drugs" voice now voicing support for marijuana reform: any questions?

This new MarketWatch article, headlined "War on drugs spokesman now supports marijuana legalization," gives me an excuse to flag an iconic 1980s public service announcement while reporting on its new symbolic significance:

The voice behind one of the war on drugs’ most iconic ads has cast a vote to legalize marijuana. During the height of the ’80s war on drugs that gave rise to the “Just Say No” campaign, actor John Roselius stared in an antidrug TV ad for the Partnership for a Drug-Free America. The ad featured Roselius frying an egg in a skillet to portray what happens to the brain while using drugs.

Roselius, who is now 72, recently told Colorado-based Rooster Magazine he voted “yes” on California’s Adult Use of Marijuana Act, or Prop 64, which would legalize and regulate the use and sale of the plant to adults. “I’m 100% behind legalizing it, are you kidding? It’s healthier than alcohol,” Roselius told the publication.

And he’s not alone. Just ahead of the Nov. 8 election — in which five states will vote on legalizing the recreational use of marijuana and four will vote on legalizing medical marijuana—a Gallup poll shows that 60% of Americans support legal marijuana use. That’s the highest percentage of support recorded in the 47-year trend, with support rising among all age groups in the past decade.

That follows a separate poll by Pew Research earlier in the month which found 57% of Americans support legalization. “The topline number obviously bodes well for the marijuana measures on state ballots next month,” said Tom Angell of Marijuana Majority, an organization tasked with educating people and fighting for marijuana legalization. “More politicians — presidential candidates included — would do themselves a big favor to take note of the clear trend and then vocally support legislation catering to the growing majority of Americans who support modernizing failed marijuana policies.”

Roselius told Rooster Magazine he’d smoked marijuana in the ’60s, and that when he made the ad, he knew it didn’t fry the brain like an egg.

The war on drugs has been one of the most scrutinized and debated policies to come out of the Reagan era. Drug dealers were cast as violent villains and were blamed for devastating some of America’s cities. Incarceration rates shot higher and disproportionately affected men of color.

The cannabis industry has since fought back against that portrayal, calling for an end to arrests for nonviolent marijuana-related offenses. Roselius’ vote to legalize marijuana in California could help push one of the most important states in the movement to the forefront.

Of course, if you do have question about these matter, my blog Marijuana Law, Policy and Reform has a lot more coverage.  And, with that intro and a good excuse now, here is a review of some recent posts there (many of which are the fine work of my relatively new co-blogger):

October 26, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Tuesday, October 25, 2016

Latest USSC data suggest prison savings now exceeding $2 billion from "drugs -2" guideline amendment retroactivity

The US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated October 2016, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through September 30, 2016, and for which court documentation was received, coded, and edited at the Commission by October 20, 2016."

The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782, the so-called "drugs -2" guideline amendment, retroactive, now 29,391 federal prisoners have had their federal drug prison sentences reduced by an average of over two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $2.1 billion dollars.

As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and taxpayer costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be relatively cautious in his use of his clemency power, this data provide still more evidence that the work of the US Sentencing Commission in particular, and of the federal judiciary in general, remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.

October 25, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (27)

Friday, October 21, 2016

New Gallup poll reports notable trends in "tough-on-crime" public polling perspectives

A6rjo7fztki7iz_8fgcxggThis new Gallup item, headlined "Americans' Views Shift on Toughness of Justice System," details the results of its latest annual Gallup poll on on crime and punishment opinions. Here are the highlights:

Americans' views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is "not tough enough" -- down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system's approach as "about right" (35%) or "too tough" (14%).

Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans' views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is "not tough enough." Although considerably higher than in the past, relatively few believe the system is "too tough."

Views of the justice system's toughness vary across racial and political party lines.  The majority of Republicans and Republican-leaning independents say it is "not tough enough" (65%), with most of the rest describing it as "about right" (30%).  Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is "about right" (42%), with the rest dividing about evenly between saying it is "too tough" (22%) or "not tough enough" (29%).

A majority of whites (53%) say the system's handling of crime is "not tough enough," while a third (32%) say it is "about right."  One in 10 whites say the system is "too tough." Nonwhites -- who as a group make up a disproportionate percentage of the U.S. incarcerated population -- are more than twice as likely as whites to say the system is "too tough" (23%).  They are also more likely than whites to say it is "about right" (40%). Meanwhile, 30% of nonwhites say the system's handling of crime is "not tough enough."

Against a backdrop of bipartisan efforts in Congress to reform drug sentencing in 2016, 38% of U.S. adults describe guidelines for sentencing of people convicted of routine drug crimes as "too tough."  A slightly smaller percentage say they are "not tough enough" (34%), while a quarter say they are "about right" (25%).  Fifty percent of Democrats say drug crime sentencing guidelines are "too tough" -- twice as high as the percentage of Republicans (26%) who say the same. Republicans are more likely than Democrats to describe drug crime sentencing as "not tough enough" (47%).

Differences in views between whites and nonwhites are less pronounced on drug crime sentencing guidelines compared with their views of the criminal justice system's handling of crime more generally. Both whites and nonwhites have sizable percentages, ranging from 21% to 39%, of those who describe drug crime sentencing guidelines as "too tough," "not tough enough" or "about right."

Americans' views about the toughness of the criminal justice system have clearly shifted in recent decades, with less than a majority now saying the system is "not tough enough" and more Americans describing it as "about right" or "too tough." Although more than in the past believe the system is overly tough, this view is still held by a relatively small minority. U.S. adults are much more likely, however, to describe drug crime sentencing guidelines as "too tough" compared with their opinions of the system's handling of overall crime, and this is the case among both racial and political party groups.

The folks over at Crime & Consequences have these two notable posts discussing these new Gallup data (though I cannot help but note they did not comment on other recent Gallup polling data reporting record-high majoritarian support for the legalization of marijuana):

October 21, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, October 12, 2016

"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"

2016-10-usa-coverThe title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.

There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.

The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.

October 12, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?

The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:

The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him.  Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.

Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.

Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month.  Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.

This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old.  With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.

October 12, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, October 07, 2016

Am I crazy to actually be expecting a marijuana (or drug war/opioid) question during Sunday's town-hall Prez debate?

Especially because neither marijuana reform nor the opioid epidemic came up during the the first Prez debate (or the VP debate), I am actually anticipating that these topics will be raised in some way during the town-hall debate scheduled for this coming Sunday.  As regular readers of my Marijuana Law, Policy and Reform blog might guess, I think the very best question to ask the candidates could link these topics.  Specifically, here is the question I would love to see asked on Sunday:

"Given the evidence emerging from a number of early studies that opioid use and abuse has generally been reduced in those states that have reformed their marijuana laws, will you commit your Administration in its first 100 days to move federal law away from blanket marijuana prohibition?"

I welcome readers to suggest their own questions on these topics in the comments (and recent posts at my other blog provides plenty of ideas for all sorts of possible questions):

October 7, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Thursday, October 06, 2016

Prez Obama commutes 102 more federal prison sentences

I just saw via various news sources that President Obama issued 102 more commutations this afternoon.  This blog post by the White House counsel reports the basics, and here is how it gets started:

Today, President Obama granted commutations to another 102 individuals who have demonstrated that they are deserving of a second chance at freedom.  The vast majority of today’s grants were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws. With today’s grants, the President has commuted 774 sentences, more than the previous 11 presidents combined.  With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.

While he will continue to review cases on an individualized basis throughout the remainder of his term, these statistics make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process. Beyond the statistics, though, are stories of individuals who have overcome the longest of odds to earn this second chance.  The individuals receiving commutation today are mothers and fathers, sons and daughters, and in some cases grandparents.  Today, they and their loved ones share the joy of knowing that they will soon be reunited.

October 6, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Sunday, October 02, 2016

Sunday election season democracy/freedom fun: guess the political speaker, the party and the context for a potent quotable about "the degenerate vote"

I love reading books about American political and social history, especially in the midst of of an yet another overwrought election season, and the one I am reading now had this remarkable quote that I just could not resist sharing as early voting begins in many jurisdictions for just the very latest and greatest "most important election of our lifetime."   When thinking about how best to share this quote, I figured it might be fun on this Sunday to encourage readers to try to guess who said the following, representing what party, and in what context.  The source of the quote will appear after the break, but here is first the potent quote:

"It is the degenerate vote that has in the past overwhelmed the liberties of free people.  And it is the degenerate vote in our big cities that is a menace to our institutions." 

This quote's repeated reference to the "degenerate vote" especially struck a chord with me in the wake of Hillary Clinton's infamous recent statement about half of Donald Trump's supporters being a "basket of deplorables."

But I also could not help but think about the on-going fight in Virginia over trying to have former felons enfranchised or national fights over voting rights to reflect another set of view on the potential harms of "the degenerate vote."

And, for a real hint about the context for the quote, readers might also consider my own research interests in how marijuana reform initiatives might be helping to turn out certain voters.

So, dear readers, before clicking through, perhaps comment on or at least think about who you think might be the political speaker, the party and the context for this potent quotable concerning "the degenerate vote."

 

 

HobsonAnswer: this quote is attributed, in the book I am now reading, to Richmond Pearson Hobson who was a United States Navy Rear Admiral and who served from 1907–1915 as a Democratic U.S. Representative from Alabama.  Rep Hobson was a decorated veteran of the Spanish–American War, and he is famous in part because, after being denied renomination in the 1914 Democratic primary, he became the only Congressman from the Deep South to vote for the (failed) women's suffrage bill in the 1915 lame-duck session of Congress.

As his vote for women's suffrage bill suggests, Hobson was not referencing women voters back a century ago when decrying "the degenerate vote."  Rather, Hobson was fond of using the term "degenerate" to reference those men who consumed alcohol, and he did so because he believed quite strongly that science proved that alcohol turned men into degenerates.  This perspective is on full display in this lengthy speech in support of alcohol prohibition delivered by Hobson 102 years ago on the floor of the US House of Representatives, where he explained his views and built the argument for a Prohibition amendment to the US constitution:

The first finding of science that alcohol is a protoplasmic poison and the second finding that it is an insidious, habit-forming drug, though of great importance, are as unimportant when compared with the third finding, that alcohol degenerates the character of men and tears down their spiritual nature.... Alcohol tears down the top part of the brain in a man, attacks certain tissues in an animal, certain cells in a flower. It has been established that whatever the line of a creature's evolution alcohol will attack that line. Every type and every species is evolving in building from generation to generation along some particular line. Man is evolving in the top part of the brain, the seat of the will power, the seat of the moral senses, and of the spiritual nature, the recognition of right and wrong, the consciousness of God and of duty and of brotherly love and of self-sacrifice.....

Science has thus demonstrated that alcohol is a protoplasmic poison, poisoning all living things; that alcohol is a habit-forming drug that shackles millions of our citizens and maintains slavery in our midst; that it lowers in a fearful way the standard of efficiency of the Nation, reducing enormously the national wealth, entailing startling burdens of taxation, encumbering the public with the care of crime, pauperism, and insanity; that it corrupts politics and public servants, corrupts the Government, corrupts the public morals, lowers terrifically the average standard of character of the citizenship, and undermines the liberties and institutions of the Nation; that it undermines and blights the home and the family, checks education, attacks the young when they are entitled to protection, undermines the public health, slaughtering, killing, and wounding our citizens many fold times more than war, pestilence, and famine combined; that it blights the progeny of the Nation, flooding the land with a horde of degenerates; that it strikes deadly blows at the life of the Nation itself and at the very life of the race, reversing the great evolutionary principles of nature and the purposes of the Almighty.

There can be but one verdict, and that is this great destroyer must be destroyed. The time is ripe for fulfillment. The present generation, the generation to which we belong, must cut this millstone of degeneracy from the neck of humanity....

To cure this organic disease we must have recourse to the organic law. The people themselves must act upon this question. A generation must be prevailed upon to place prohibition in their own constitutional law, and such a generation could be counted upon to keep it in the Constitution during its lifetime. The Liquor Trust of necessity would disintegrate. The youth would grow up sober. The final, scientific conclusion is that we must have constitutional prohibition, prohibiting only the sale, the manufacture for sale, and everything that pertains to the sale, and invoke the power of both Federal and State Governments for enforcement. The resolution is drawn to fill these requirements.

October 2, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (7)

Wednesday, September 28, 2016

NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors

Current PortraitThis official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty.  The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:

Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.

The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.

The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.

Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.

Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.

Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution.  “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed.  The proposal was introduced late last week.

I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.

UPDATE I have found this page via Congress.gov providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes."  Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:

Rep. Yoho, Ted S. [R-FL-3]

Rep. LaMalfa, Doug [R-CA-1]

Rep. Flores, Bill [R-TX-17]

Rep. Chabot, Steve [R-OH-1]

September 28, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, September 26, 2016

Making the argument for legalization as the best response to the US heroin problems

This new opinion piece by Bonnie Kristian at The Week, headlined "Legalize heroin," makes a full-throated argument for why eliminating criminal law rather than making it more tough would be the best way to deal with the current heroin epidemic. Here are excerpts:

The U.S. government should legalize heroin.  The last five years have seen heroin overdose deaths dramatically spike in the United States, from just over 3,000 in 2010 to more than 10,500 in 2014, the latest year for which the National Institutes of Health provides data. In fact, drug overdose deaths now outpace car crashes in taking American lives, and about half those overdoses are attributable to heroin and other opioids....

Recent history and present practicalities alike make clear that the best way to cut down on heroin abuse is to legalize it — or at the very least, decriminalize it.  The crown jewel of evidence for this point is the experience of Portugal, whose culture and form of government are similar enough to our own to make comparison reasonable.  In 2001, Portugal decriminalized all drugs. All drugs.

A decade later, hard drug abuse had dropped by half.  Drug overdose deaths in Portugal are now all but nonexistent: just three for every million people each year. (Were overdose deaths happening in America at a Portuguese rate, we'd see fewer than 1,000 die annually, more than a 90 percent drop from the current numbers on opioid-related deaths, let alone total overdose deaths.)  Portuguese use of sketchy "legal" substitutes is way down, too, because there’s no need to mess with dangerous unknowns when you’ll only get a small fine and maybe a rehab referral if you’re caught with the real thing. Heroin addiction — suffered by fully 1 percent of Portugal's population pre-decriminalization — is estimated to have dropped by about half, and most of those who are still addicted are on substitution treatment and in no statistical danger of overdose.

By contrast, here in the States, strict prohibition has utterly failed to prevent drug use rates at world-record levels.  Drug war spending is perhaps the only thing to spike faster than heroin addiction, and we have nothing to show for it. In 2016, Rolling Stone notes, "the federal government is spending more than $1,100 per person to combat the habit of America's 27 million illicit-drug users, and 22 million of them use marijuana."  With more than $1.5 trillion down the drain, U.S. addiction rates have utterly failed to improve.

If anything, the drug war makes illicit opioid use more dangerous than it otherwise would be. Heroin abuse often begins as an extension of opioid addiction fostered by over-prescription, and once users get their supply from the street instead of the pharmacy, prohibition produces tainted and mislabeled products that make overdose more likely — just like it did with alcohol nearly a century ago.

Criminalizing the heroin supply chain produces a risky and therefore lucrative market for violent criminals, leading to casualties far beyond the toll of drug abuse itself.  To argue for legal heroin "does not, at first blush, appear to put one on the side of the angels," explains Harvard's Danielle Allen, but "the war on drugs drives violent crime, which in turn pushes up incarceration and generates other negative social outcomes. You just can't move $100 billion worth of illegal product without a lot of assault and homicide."

Prohibition even makes safe treatment less likely for addicts who know they have a problem and actively want to change their lives.  After decriminalization, Portugal saw the rate of people seeking addiction treatment nearly double, because now there is essentially no downside to doing so. With a looming threat of jail or coercive court-mandated rehab stints shaped as much by policy goals than each individual's unique health care needs, the same cannot be said here....

Heroin addicts need relief too — relief from their addiction itself, yes, but also from dangerous products, organized crime, and a government eager to lock them up in a prison environment hardly conducive to improving physical or mental health.  Of course, there is an element of choice in opioid abuse that is missing from a cancer diagnosis.  Still, the heroin epidemic is a health crisis, and legalization is a viable and practical solution that compassion dictates we must consider.

September 26, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, September 23, 2016

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Sunday, September 18, 2016

Who will go after the biggest (legal) drug dealers still contributing to the biggest modern drug harms?

The question in the title of this post is prompted by this new AP article headlined "Drugmakers fought state opioid limits amid crisis."  Here is how the article starts:

The makers of prescription painkillers have adopted a 50-state strategy that includes hundreds of lobbyists and millions in campaign contributions to help kill or weaken measures aimed at stemming the tide of prescription opioids, the drugs at the heart of a crisis that has cost 165,000 Americans their lives and pushed countless more to crippling addiction.

The drugmakers vow they're combating the addiction epidemic, but The Associated Press and the Center for Public Integrity found that they often employ a statehouse playbook of delay and defend that includes funding advocacy groups that use the veneer of independence to fight limits on their drugs, such as OxyContin, Vicodin and fentanyl, the narcotic linked to Prince's death.

The industry and its allies spent more than $880 million nationwide on lobbying and campaign contributions from 2006 through 2015 — more than 200 times what those advocating for stricter policies spent and eight times more than the influential gun lobby recorded for similar activities during that same period, the AP and Center for Public Integrity found.

The drugmakers and allied advocacy groups — such as the American Cancer Society Cancer Action Network — also employed an annual average of 1,350 lobbyists in state capitals from Olympia to Tallahassee during that span, when opioids' addictive nature came under increasing scrutiny.  "The opioid lobby has been doing everything it can to preserve the status quo of aggressive prescribing," said Dr. Andrew Kolodny, an outspoken advocate for opioid reform. "They are reaping enormous profits from aggressive prescribing."

Prescription opioids are the cousins of heroin, prescribed to relieve pain. Sales of the drugs quadrupled from 1999 to 2010, rising in tandem with overdose deaths. Last year, 227 million opioid prescriptions were doled out in the U.S., enough to hand a bottle of pills to nine out of every 10 American adults....

Doctors continue to prescribe opioids for ailments such as back pain and headaches, even though studies have shown weak or no evidence that the drugs are effective ways to treat routine chronic pain — and even though they come with the risk of addiction.  In 2007, executives at Purdue, the maker of OxyContin, pleaded guilty to misleading the public about the drug's addictive nature and agreed to pay $600 million in fines.

Lawmakers across the country have started attempting to limit the flood of prescribing and prevent overdoses. In 2012, for example, New Mexico considered a bill to limit initial prescriptions of opioids for acute pain to seven days to make addictions less likely and produce fewer leftover pills that could be peddled illegally. The bill died in the House Judiciary Committee. "The lobbyists behind the scenes were killing it," said Bernadette Sanchez, the Democratic state senator who sponsored the measure.

September 18, 2016 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (4)

Any distintive thoughs, dear readers, on notable new video, "Jay Z: 'The War on Drugs Is an Epic Fail'"?

This past week, the New York Times released this "op-ed" and video, which is embedded below, under the headline "Jay Z: ‘The War on Drugs Is an Epic Fail’."  This description of the video is provided by Asha Bandele, a senior director at the Drug Policy Alliance: 

This short film, narrated by Jay Z (Shawn Carter) and featuring the artwork of Molly Crabapple, is part history lesson about the war on drugs and part vision statement. As Ms. Crabapple’s haunting images flash by, the film takes us from the Nixon administration and the Rockefeller drug laws — the draconian 1973 statutes enacted in New York that exploded the state’s prison population and ushered in a period of similar sentencing schemes for other states — through the extraordinary growth in our nation’s prison population to the emerging aboveground marijuana market of today. We learn how African-Americans can make up around 13 percent of the United States population — yet 31 percent of those arrested for drug law violations, even though they use and sell drugs at the same rate as whites.

Notably, this Vox commentary by German Lopez provides a sharp review of this effort via its extended headline: "Jay Z’s viral video about the war on drugs gets mass incarceration all wrong: The video is well argued and beautifully drawn. It’s also completely wrong." 

September 18, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Friday, September 16, 2016

GOP Congressman Sensenbrenner explains why federal criminal justice reform is necessary to fix a "broken system" which is "fiscally unsustainable" and "morally irresponsible"

Representative Jim Sensenbrenner has a long and dynamic history working on federal criminal justice issues, and not that long ago he was an ardent supporter of many mandatory minimum sentencing provisions.  But more recently, Rep Sensenbrenner has become a potent voice calling for federal reforms, and his latest pitch on that front appear in this new commentary headlined "Criminal Justice Reform Bills Are On The Table In Congress. Now It Needs To Pass Them."  Here are excerpts from this piece:

In 2013, House Judiciary Chairman Bob Goodlatte (R-VA) created the Over-criminalization Task Force which examined the depth, seriousness, and complexities of the problems facing our federal criminal justice system. The findings that came from the task force allowed Members on the Committee to identify key problem areas and begin the reform process.  Last year, momentum for criminal justice reform reached an all-time high. It united a wide range of law enforcement and political organizations, advocacy groups, and Congressional leaders under a common goal: to fix our broken system....

Although a large number the nation’s 2.3 million inmates deserve their place behind bars, too many low-level, non-violent individuals are caught up in broken system.  Their incarceration diverts limited resources away from other priorities, such as policing and the capture and punishment of violent and career criminals.  For too long, the pressing need for criminal justice reform has been put on the backburner.  It has led to increasing financial burdens on taxpayers, violent outbursts in economically depressed neighborhoods throughout the nation, and the breakdown of hundreds of thousands of American families.

Fifty percent of the current prison population suffers from substance abuse problems, mental health issues, or a combination of both.  Our criminal justice system is not equipped to provide these individuals with the help they need to gain control of their lives and acquire the critical work skills necessary to successfully re-enter society and the workforce.  Without these basic tools, the likelihood of recidivism is high....

Each piece of legislation currently on the table addresses specific problems in the current system and offers common sense, fiscally responsible solutions that will increase public safety, support law enforcement and victims of crime, and decrease the overwhelming financial burden on hardworking taxpayers.  However, none of it matters unless Congress is willing to pass legislation and President Obama is ready to sign it.

At the heart of federal criminal justice reform is the desire to create a better way forward for every American struggling under our broken system.  Families ripped apart by incarceration, communities divided by a seemingly impenetrable wall between law enforcement and the neighborhoods they protect, and an ineffective justice system not only weakens the fabric of society, but hinders economic growth and opportunity for all Americans.

Three years ago, Congress began a journey to rectify the injustices in our federal criminal justice system.  Right now, we have the opportunity to finish the job and pass meaningful and effective reform legislation. Our system cannot continue on its current trajectory.  It’s not only fiscally unsustainable, but morally irresponsible.  We must do better and we can do better.

 Prior recent posts regarding some federal CJ work and statements by Rep Sensenbrenner:

September 16, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama

091416-Obama-commutations-online_1USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama.  The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:

For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.

As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.

A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.

The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.

While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”

There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.

Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.

But increasingly, recipients of Obama's mercy are years away from paying their debt to society.

White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."

Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.

But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....

"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."

Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.

While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.

And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."

September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, September 15, 2016

Interesting (and already dated) census of problem-solving courts from BJS

The Bureau of Justice Statistics just released this interesting new report titled Census of Problem-Solving Courts, 2012," and here are its identified " HIGHLIGHTS": „„

September 15, 2016 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Grover Norquist and Wade Henderson say now is the time for federal statutory sentencing reform

This new National Review commentary authored by the notable pairing of Grover Norquist and Wade Henderson makes the case for having Congress finally getting sentencing reform to the desk of Prez Obama now.  The piece is headlined "No Better Time Than Now to Pass Justice Reform," and here are excerpts:

Picture this: a legislative reform initiative that has garnered more than 70 percent approval from both Democrats and Republicans in state after state. Imagine a package of reform bills that has brought together elected officials from the left and right and passed through House committee with near unanimous support. Now consider that the speaker of the House is the biggest champion of these bills.

What issue has brought together both ends of Pennsylvania Avenue and has civil-rights groups working with top prosecutors and law enforcement? Justice reform. And given all this success, you would say these policies have every chance of becoming law, right? It’s not that simple, but it should be.

In the months since bipartisan-backed sentencing- and prison-reform legislation was introduced in the House of Representatives, Congress managed to name about ten post offices, revised coastal-barrier boundaries, ordered the Mint to create commemorative coins, and adopted bison as the national mammal of the United States.

In the states during that time, Minnesota introduced and passed the most significant reforms to its drug laws in 30 years. These bills reduced mandatory minimums for low-level drug crimes and devoted greater resources to treatment instead of incarceration. Iowa took similar steps. Maryland repealed mandatory minimum sentences for nonviolent drug offenses. Even states with high incarceration rates took action. Oklahoma and Louisiana eliminated employment barriers for those with criminal records. And Kentucky passed one of the most aggressive expungement bills in the country that seals criminal records for certain offenses.

It’s time for Congress to act on justice reform. The states have proven that treatment and rehabilitation in lieu of incarceration can often provide better outcomes. Unnecessarily harsh sentences for nonviolent offenders do not make better citizens; they lead them to commit more offenses. We also know that the easier it is for someone who leaves incarceration to get a job, improve his education, and support his family, the better shot he has at turning away from crime altogether.

In an election year, real reforms can easily get jettisoned for campaign-trail antics. Yet we know justice reform makes for good politics as well as good policy. In polling in battleground states such as Florida, Nevada, Ohio, and North Carolina, support for reforms that would reduce mandatory minimum sentences and focus resources on rehabilitation ranges from the low 70s to the high 80s for both Republicans and Democrats. These numbers show that the risk lies not in supporting these reforms, but in opposing them.

When one in three American adults has a record, these issues are now affecting every corner of society. That explains why the diversity of support for justice reform spans the breadth and depth of our political ideologies. Whether it’s about redemption and second chances, as is the case for religious groups such as the Southern Baptist Convention, or about reducing the cost of an ineffective system, as is the case for Americans for Tax Reform and many other conservatives, millions of Americans from all different perspectives are getting behind this movement....

Our justice system should be a part of the solution to crime and its root causes. We can do better than using a one-size-fits-all sentencing regime that lumps nonviolent offenders with violent ones. And when some estimates have re-arrest rates for ex-offenders at 65 percent within three years, we cannot afford to continue the status quo. The reforms on the table would improve outcomes while ensuring that public safety is a top priority.

The best chance we have of passing this legislation is now. The political stars are aligned, and support for reform is at a zenith. We need our elected officials to seize this moment and pass legislation that saves money and makes us safer. Congress must not squander this opportunity.

September 15, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, September 13, 2016

"As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next?"

25621291The title of this post is the enjoyably provocative headline of this notable new Reason piece authored J.D. Tuccille.  Here are some excerpts which appeal to my libertarian instincts while also highlighting why I think much more that just the wicked weed is implicated in movements to reform modern marijuana laws:

As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics — a predecessor agency to the DEA — and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.

"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State. "The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."

McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.

But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around. "Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.

People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.

Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities — urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people — African-Americans, in particular — whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.

Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.

So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall.  Prohibition has its own logic — of control and power — that has very little to do with the specific prohibition at any given moment.  Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.

So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove.  What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place.   Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.

In addition to providing an amusing post title, this commentary inspires me to remind readers once again that one way to keep up with marijuana prohibition winding down is to regularly read my Marijuana Law, Policy and Reform.  There you will find these recent posts, among many, many others:

September 13, 2016 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, August 31, 2016

Clemency advocate explains her view on "How to inspire criminal justice reform"

The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark."  Here are excerpts from her commentary:

As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America.  The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population.  Today, there are over 2.2 million people incarcerated in this country.

The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.

While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order.  The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.

#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions.  But with no parole in the federal system, he has been fundamentally condemned to die in prison.

Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences.  Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.

Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....

While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it.  Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America.  It screams that a person is beyond hope, beyond redemption.  It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.

Recently, I went to visit Corey in prison to discuss his pending clemency petition.  As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself.   I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.

Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me.  I no longer wanted to be just a lawyer.  I wanted to use this platform to promote the greater good.  Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....

Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive.  And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote.  We must urge Congress to pass this overdue, life-changing legislation.

But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....

Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families.  Reform is desperately needed.  The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing.  After all, there is nothing more urgent than freedom.

August 31, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, August 27, 2016

Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"

In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This new Washington Post article reports on recent developments on this front under the headline "Nearly 2,000 have died in Duterte’s ‘war on drugs’ in the Philippines. One is a 5-year-old girl."  Here are excerpts:

Philippine President Rodrigo Duterte's "war on drugs" has left hundreds of people killed in less than two months.  One of the most recent victims — and possibly the youngest — is 5-year-old Danica May Garcia, who was shot in the head on Tuesday.

According to the online news website Rappler, two motorcycle riders barged into the girl's family's home in Dagupan City, more than 130 miles northwest of Manila, while they were having lunch and opened fire.  The men's main target was Danica's grandfather, 53-year-old Maximo Garcia, who had already surrendered to police a few days earlier after he was told he was on a drug watch list.  Garcia ran to the back of the house toward the bathroom as the gunmen chased and shot at him. Danica, who was stepping out of the bathroom, was gunned down, Rappler reported.

"This is so painful for us," Garcia's wife, Gemma, told the Philippine Daily Inquirer.  "I would miss the nights when Danica would massage us until we fell asleep. I would miss her laughter when she teased her mother." Gemma Garcia, who runs a small eatery, told the Inquirer she was surprised to find out that her husband was a drug suspect, saying he had never been involved in illegal drugs.  Maximo Garcia used to earn a living by driving a tricycle, a form of auto rickshaw commonly used to carry passengers in the Philippines.  But he had to stop after he suffered a stroke three years ago, according to the paper.

Superintendent Neil Miro, Dagupan's police chief, told the Inquirer that 26 suspected drug dealers have been killed in the city as of Tuesday.  Nationwide, more than 1,900 killings have occurred since Duterte took office June 30, according to estimates by several media outlets.  Nearly 700,000 drug users and peddlers have turned themselves in, according to Reuters.

Duterte, a tough-talking former mayor of the southern city of Davao, ran on a pledge to eradicate his country's problems with drugs. Illegal drugs, particularly methamphetamine, locally known as "shabu," have been rampant in the Philippines for decades. The 71-year-old former prosecutor has publicly advocated killing suspected criminals, even once urging citizens to take matters into their own hands.

On Monday, Philippine senators started an investigation into the rising death toll under Duterte's administration. Witnesses, with their faces covered to protect their identities, testified about how their loved ones were arrested and gunned down by police.  Sen. Leila de Lima, head of the Senate justice committee leading the investigation, said in her opening remarks Monday that she's concerned about the spate of killings that appear to have been carried out by vigilantes, not by the government.  "What is particularly worrisome is that the campaign against drugs seems to be an excuse for some — may I just emphasize, some — law enforcers and other vigilantes to commit murder with impunity," de Lima said.

De Lima has been accused of having an affair with her former driver and authorizing him to collect money from drug lords detained in the New Bilibid Prison in Muntinlupa City, Metro Manila when de Lima was justice secretary. De Lima has denied the allegations.

Philippine National Police Director General Ronald dela Rosa reported to the Senate committee earlier this week that of those who died, only 756 were killed during confrontations with police. Dela Rosa, nicknamed "Bato," which means rock or stone, told the Senate committee that the drug suspects were killed because they resisted arrest. "If they did not resist, they would still be alive," dela Rosa told the committee, according to the Inquirer.

The majority of the killings — 1,160 — were committed outside police operations, mostly by vigilantes, and are under investigation, dela Rosa said. He added that not all the deaths are drug-related.

International advocacy groups, meanwhile, have been vocal in opposing Duterte's policy. Phelim Kine, deputy director of the Human Rights Watch's Asia Division, wrote Thursday about Danica May's death. Kine noted that Philippine Justice Secretary Vitaliano Aguirre defended the killings linked to Duterte's war on drugs. "If you're in the Philippines, you will choose to kill these drug lords," Aguirre said. "Desperate times call for desperate measures. So this is what the president is doing, and we support it."

Amnesty International has called on Duterte to "break the cycle of human rights violations" and to curb his "inflammatory" rhetoric. "President Duterte has been elected on a mandate to uphold the rule of law. It is encouraging that he spoke of honouring the Philippines' obligations under international law in his inauguration speech," Rafendi Djamin, Amnesty International's director for Southeast Asia and the Pacific, wrote in June. "But now he is in power, he needs to lend substance to those words and break with his earlier rhetoric."...

Gemma Garcia said that her granddaughter's death has left her and her family in fear for their lives. "We are afraid to stay here. But the problem is, where will we go?" Gemma Garcia told the Inquirer. "The killers may come back for my husband."

When I discuss deterrence and related utilitarian justifications for various sentencing and punishment schemes, I often suggest that a "hard core" utilitarian with no concens about retributivist/desert-based limits on punishment might be willing to consider not just summary executions of convicted criminals, but even executions of relatives of criminals as part of an effort to dramatically deter certain types of wrong-doing. This report suggests that Philippine Prez Duterte's regime is functionally trying out what I always considered just a hypothetical thought experiement.

Prior related posts:

August 27, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)