Friday, March 23, 2018

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

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





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

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

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

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

March 23, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, March 22, 2018

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

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

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

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

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

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

A few prior related posts:

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

Wednesday, March 21, 2018

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

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

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

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

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

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

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

Prior related posts:

March 21, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (7)

Monday, March 19, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, March 18, 2018

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, March 16, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, March 11, 2018

"More Imprisonment Does Not Reduce State Drug Problems"

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

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

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

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

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

Saturday, March 10, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

Friday, March 09, 2018

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

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

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

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

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

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

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

Thursday, March 01, 2018

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

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

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

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

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

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

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

Prior related post:

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

Wednesday, February 28, 2018

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

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

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

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

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

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

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

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

February 28, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, February 25, 2018

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 15, 2018

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

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

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

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

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

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

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

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

Wednesday, February 14, 2018

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

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

Monday, February 12, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, February 10, 2018

Highlighting how mandatory minimums can distort pretrial procedures and practices

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

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

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

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

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

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

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

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

Tuesday, February 06, 2018

Prez Trump trumpets again his interest in getting "really, really tough, really mean with the drug pushers and the drug dealers"

As noted in this prior post, Prez Trump last week in his State of the Union address spoke about "reforming our prisons" and the need to "get much tougher on drug dealers."  The first comment, coming on the heels of other prison reform talk, has garnered the most attention among criminal justice reform advocates.  But the second comment ought also get some attention, especially because Ronald Bailey has highlighted at Reason that Prez Trump doubled-down on these comments this week.

This Reason commentary, headlined "Trump Wants Us 'To Get Really, Really Tough, Really Mean with the Drug Pushers': Doubling down on a drug war that has failed for 40 years," take a critical look at what the President is saying. Here is how is starts (with links from the original):

What's the best way to address the national problem of opioid abuse and overdose deaths? "My take," President Donald Trump declared in Ohio yesterday, "is you have to get really, really tough, really mean with the drug pushers and the drug dealers. We can do all the blue ribbon committees we want—[applause]—we have to get a lot tougher than we are."

The president's dismissal of blue ribbon commissions is somewhat perplexing, since he ordered that one be created just last March—the President's Commission on Combating Drug Addiction and the Opioid Crisis. In any case, the president is evidently eager to rev up the war on drugs.

What might the president mean by getting really tough on drug pushers? One clue might be his phone call to Philippines President Rodrigo Duterte last April. "I just wanted to congratulate you because I am hearing of the unbelievable job on the drug problem," Trump said. "Many countries have the problem, we have a problem, but what a great job you are doing and I just wanted to call and tell you that."

As big a blustering blowhard as our president is, I trust that he is not actually contemplating Duterte-style extrajudicial killings when he says "we have to get a lot tougher than we are." Nevertheless, it is clear that the president has learned nothing from the failures of the war on drugs. Over the past four decades, the government has spent more than trillion dollars, locked up millions of Americans, and undermined our civil liberties, especially our Fourth Amendment protections against search and seizure, to stop the drug trade. Despite all the resources wasted and lives lost, the prices of illicit drugs have generally declined.

Prohibitionists claim that the drug war has reduced drug-related crime, decreased drug-related disease and overdose, and disrupted and dismantled organized criminal enterprises. But in a paper last year for the Cato Institute, George Mason University economists Christopher Coyne and Abigail Hall show that "prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad. Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels."

February 6, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, January 31, 2018

Spotlighting prisoners still stuck in federal prison because of absence of retroactive application of Fair Sentencing Act

Kara Gosch has this new Washington Post commentary headlined "Thousands are stuck in prison — just because of the date they were sentenced." Here are excerpts:

Eugene Downs sits in federal prison years longer than justice demands.  On Aug. 2, 2010, Downs was sentenced to a mandatory minimum sentence of 10 years for conspiring to distribute at least 50 grams of crack cocaine.  The very next day, President Barack Obama signed the Fair Sentencing Act, a law that limited mandatory minimum sentences for crack cocaine and the number of cases subject to them.

If Downs had been sentenced one day later, he would now be free, because the Fair Sentencing Act reduced the sentence for distribution of 50 grams of crack cocaine to five years.  Incidentally, Downs’s co-defendants were all sentenced after Aug. 2 and benefited from the lowered penalties.

Earlier this month, the U.S. Court of Appeals for the 6th Circuit ruled there is nothing it can do to help Downs....

Thanks to efforts from civil rights and criminal-justice-reform organizations, the Obama administration signed onto the Fair Sentencing Act, which reduced the drug quantity ratio between powder and crack cocaine that triggers the mandatory minimums from 100-1 to 18-1.  The law’s disparity is still unjustified, but the 2010 reform was a big step in the right direction.

Unfortunately, the law failed to account for people already in prison under the outdated penalties. According to a document generated by the Sentencing Commission for Congress, 3,147 people could benefit from retroactivity of the law. Eight-nine percent of these prisoners are black. Eugene Downs, who is African American, is just one of them.

Legislation to apply the Fair Sentencing Act retroactively has garnered bipartisan support in Congress. In 2015, the Judiciary committees in both the House and the Senate approved legislation that would have made Downs eligible for early release. Unfortunately, election-season politics and demagoguery from a handful of Republicans, including then-Sen. Jeff Sessions, doomed the bill.

There is some hope: Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) reintroduced the proposal last year with reforms that would reduce sentences for an even greater number of low-level drug offenses. Many of those provisions would be made retroactive. House Republicans have yet to reintroduce a similar bill in their chamber, but Speaker Paul D. Ryan (R-Wis.) has put criminal-justice reform on his list of priorities for 2018.

Still, President Trump has not indicated that he shares in the bipartisan enthusiasm for sentencing reform. While he recently convened a White House meeting with governors and conservative allies to extol the virtues of second chances and rehabilitation, his decision to put Sessions in charge of the Justice Department is not promising.

In any case, the retroactive application of the reformed sentencing laws should be an exception for “tough on crime” crusaders. Sometimes unfair laws punish people who deserve a second chance. We cannot allow the random day on which people are sentenced to prison be their primary obstacle to justice.

Regular readers surely know I am deeply sympathetic to the concept of giving broad retroactive effect to ameliorative changes in sentencing laws.  But the story of Eugene Downs strike me a bit peculiar in this context because, as noted in 2010 posts here and here, the Fair Sentencing Act was approved by both houses of Congress on July 28, 2010 and received plenty of media attention on July 29, 2010.   Arguably, one could blame Prez Obama for Eugene Downs' fate because he waited a week to sign the FSA.  Perhaps more properly, one should probably blame an attorney for Eugene Downs' fate for failing to seek a sentencing continuance in light of a pending critical legal change.

January 31, 2018 in Drug Offense Sentencing, New crack statute and the FSA's impact, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, January 30, 2018

A SCOTUS amicus opportunity to reiterate some of my views on sentence finality

The Supreme Court has three(!) upcoming arguments concerning the proper application of the federal prison term modification rules that Congress set out in 18 U.S.C. § 3582(c)(2): Hughes v. United States and Koons v. United States are due to be argued March 27, and Chavez-Meza v. United States will likely be argued in late April.  The fact that the SCOTUS has decided to take up three cases dealing with § 3582(c)(2) highlights the range of intricate issues that sentence modification motions can present.  And the first of these cases, Hughes, deals with the initial issue of who is even eligible for sentence modification and presents further questions about how to deal with the 4-1-4 divide among the Justices in the leading prior ruling of Freeman v. United States, 564 U.S. 522 (2011).

As readers know, I have written up some of my perspectives on "sentence finality" in an law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in a number of prior posts (some of which are reprinted below).  I was encouraged recently to channel some of these ideas into an amicus brief in Hughes, and a terrific set of lawyers at Sidley Austin LLP played the leading and central role in making this amicus brief a reality.  Here is the "Summary of Argument" from this just-filed brief:

The standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  See Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 Wake Forest J.L. & Pol’y 151, 174–75 (2014). Through sentence-modification provisions like the one at issue in this case, see 18 U.S.C. § 3582(c)(2), Congress has expressed its concerns for those other criminal justice interests by creating a significant sentencing exception to the usual presumption in favor of finality.  Appreciating the importance of getting sentences right while an offender is still serving a prison term, Congress has astutely elevated substantive sentencing goals like accuracy, fairness, and uniformity over concerns about finality in this context.  Section 3582(c)(2) serves well the purposes of fitness and fairness: its sentence-modification provisions eliminate unwarranted disparities in federal sentencing, promote the government’s legitimate substantive penological interests, foster societal respect for the criminal justice system, and save long-term costs associated with excessive terms of incarceration.

The question of statutory interpretation presented in this case, i.e., what does the term “based on” mean, should be resolved in favor of clear congressional policy and purpose. Defendants who commit crimes of similar severity under similar conditions should receive similar sentences.  When it is functionally apparent that a particular amended guideline was applicable in a defendant’s case, it ought not matter whether that defendant’s plea agreement contained calculations applying the since-reduced guideline.  A contrary interpretation, one that unnecessarily narrows eligibility for relief under § 3582(c)(2), would turn congressional policy on its head, wrongly elevate finality interests over those Congress sought to champion, and lead to systemic injustice.  The Court should take this opportunity to embrace a broad interpretation of “based on” that comports with overriding congressional policy.  Accordingly, petitioner should be eligible for relief under § 3582(c)(2) because his sentence was “based on” a Guidelines range that has been subsequently lowered.

Some (of many) prior posts on sentencing finality:

January 30, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Expansion of the Federal Safety Valve for Mandatory Minimum Sentences"

Download (7)The title of this post is the title of this relative short "Issue Brief" from FreedomWorks authored by Jason Pye and Sarah Anderson. The five-page document provides a basic overview of the federal statutory safety valve in 18 U.S.C. § 3553(f) which, as the brief explains, provides "an exception to mandatory minimum sentences for nonviolent drug offenders with little to no criminal history." Here are excerpts:

The Sentencing Reform Act, Sentencing Reform and Corrections Act, and the Smarter Sentencing Act proposed an expansion of eligibility for the safety valve by increasing the number of criminal history points an offender may have on his or her record.  The safety valve does not prevent an eligible offender from serving time in prison.  It does, however, reduce overcrowding and allows the limited number of prison beds to be used for violent criminals.  The safety valve also restores a partial measure of judicial discretion, allowing a judge to sentence below a statutory mandatory minimum, should the judge believe the sentence is too harsh for the offense committed....

Since the creation of the federal safety valve, more than 80,000 federal offenders have received fairer, more just sentences.  These lesser sentences for nonviolent, low-level drug offenders allow limited prison resources to be used on violent, repeat offenders who are true threats to public safety....

The proposed changes to the federal code to expand the safety valve to offenders who have up to three or four criminal history points, with exceptions for some of those points coming from more serious or violent offenses, is a modest, common sense change.  Nothing in the safety valve prevents judges from sentencing prisoners at or above the mandatory minimum even if they are eligible for the safety valve, but simply allows judicial discretion to ensure that prison resources are being used where they can best protect public safety, and not wasted on nonviolent, low-level drug offenders.

In the 115th Congress, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has reintroduced the Sentencing Reform and Correction Act and Sen. Mike Lee (R-Utah) has reintroduced the Smarter Sentencing Act, both of which include an expansion of the federal safety valve.  Although the Sentencing Reform Act has not yet been reintroduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins (R-Ga.) would serve as a likely vehicle for sentencing reforms similar to those found in the Sentencing Reform Act.

Should the House Judiciary Committee markup the Prison Reform and Redemption Act, FreedomWorks urges the committee to include an expansion of the federal safety valve that would allow judicial discretion in sentencing qualifying offenders to ensure that lengthy sentences and prison resources are spent on criminals who represent a serious threat to our communities. 

In addition to being a helpful review by a notable organization of one piece of the federal sentencing system, this document strikes me a timely and astute effort to start building the case for incorporating at least a little bit sentencing reform into the prison reform efforts that now are gaining steam in Congress. Because it appears to have the blessing of Prez Trump and maybe even Attorney General Sessions, the Prison Reform and Redemption Act right now looks like the proposed federal legislation with the greatest chance of enactment. This Issue Brief wisely highlights why it would be a wise decision to add a modest sentencing reform provision into that proposal.

January 30, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, January 28, 2018

Noticing that ALEC is now joining growing calls for reforming drug-free zone laws

Regular readers likely remember some recent and many older posts discussing the problems with drug-free zone laws that can sometimes result in first-time and low-level drug offenders facing and receiving extreme prison sentences when just happening to be inadvertently in the wrong place at the time of their offense.  Via this post at Reason, headlined "ALEC Urges State to Reform Drug-Free School Zone Laws," I see that a not-so-usual suspect is now calling for the reform of these laws. Here are the details (with links from the original):

The American Legislative Exchange Council (ALEC), a conservative, pro-business organization that drafts model bills for state legislatures, passed a resolution Friday urging states to reform their drug-free school zone laws.  The conservative group is the latest in a growing bipartisan chorus opposing punitive drug-free school zone laws, which exist in all 50 states and the District of Columbia.

"Most Drug-Free Zone laws were established decades ago," the resolution says, "but have not been reformed despite evidence that Drug-Free Zones are arbitrary and often unnecessarily broad, are ineffective at deterring drug- related crime, and create significant unintended consequences, including unwarranted disparate impacts on minority defendants."

That's exactly what a December Reason investigation into Tennessee's Drug-Free School Zone Act found.  Tennessee's drug-free school zones extend 1,000 feet from the real property of every school, library, park, and daycare in the state. Using GIS data obtained from the state, Reason found there were 8,544 separate drug-free zones in Tennessee, amounting to 5 percent of the overall area of the state and 26 percent of urban areas.

Those enhanced sentencing zones were rarely, if ever, used to prosecute drug crimes involving children, according to interviews with prosecutors and defense attorneys. But they did result in first-time and low-level drug offenders receiving longer prison sentences than if they had been found guilty of second-degree murder or rape. Sentencing data also showed wide racial disparities in who received drug-free school zone sentences, with blacks making up 69 percent of all current inmates serving time for violations of the act, despite only making up 17 percent of the state population. The zones, which tend to cluster in low-income and minority neighborhoods, also give prosecutors immense leverage to squeeze plea deals out of defendants.

Several states have passed reforms to their laws over the past decade, shrinking the size and number of zones. The Tennessee legislature is considering a similar reform this year to shrink its zones from 1,000 feet to 500 feet. A bipartisan group of civil liberties and criminal justice organizations are supporting the bill, such as Families Against Mandatory Minimums (FAMM). Conservative lawmakers recognize that drug-free school zone laws have proven to be a costly failure," FAMM president Kevin Ring said in a statement on the ALEC resolution. "These laws stick low-level offenders with long sentences even when no children are involved and, as a result, they waste resources that could be better spent on more serious offenders."

A few of many prior related posts:

January 28, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, January 23, 2018

Lots of notable arrest data in Drug Policy Alliance report on marijuana legalization states

Status-report-coverThe reform advocacy organization Drug Policy Alliance has released today this big new data-dense report titled "From Prohibition to Progress: A Status Report on Marijuana Legalization; What We Know About Marijuana Legalization in Eight States and Washington, D.C."   I have already blogged about this report in general terms over at Marijuana Law, Policy & Reform, but I suspect sentencing reform fans might find interesting what this report says about marijuana arrest rates and related criminal justice issues. 

Particularly interesting for criminal justice fans, especially those interested in or concerned about low-level offense enforcement, are the DPA report's detailed arrest data for every marijuana legalization state in the Appendix.  Here is a portion of how the DPA report discusses these data:  

Arrests in all legal marijuana states and Washington, D.C. for the possession, cultivation and distribution of marijuana have plummeted since voters legalized the adult use of marijuana, saving those jurisdictions hundreds of millions of dollars and preventing the criminalization of thousands of people.

Across legal marijuana states and Washington, D.C. the number of arrests for marijuana law violations has declined dramatically (as shown in Chart 2). In Alaska, the number of marijuana arrests for possession and sales/manufacturing declined by 93 percent from 2013 to 2015, from 845 to 60 (see Appendix C). In Colorado, marijuana arrests declined by 49 percent from 2012 to 2013 (12,894 to 6,502). The number of marijuana arrests increased by 7 percent in in 2014 (7,004), yet remained 46 percent lower than in 2012 (see Appendix E). The total number of marijuana‐related court filings in Colorado declined by 81 percent between 2012 and 2015 (10,340 to 1,954), and marijuana possession charges dropped 88 percent (9,130 to 1,068).

In Oregon, the number of marijuana arrests declined by 96 percent from 2013 to 2016 (6,996 to 255) (see Appendix H). The total number of low-level marijuana court filings in Washington fell by 98 percent between 2011 and 2015 (6,879 to 120) (see Appendix I). Marijuana possession convictions in Washington decreased by 76 percent from 2011 to 2015 (7,303 to 1,723). In Washington, D.C., marijuana arrests decreased 76 percent from 2013 to 2016 (3,450 to 840), with possession arrests falling by 98.6 percent, from 2,549 in 2013 to 35 in 2016....

It is widely acknowledged that racial disparities exist in the enforcement of marijuana laws in this country – Black and Latinx people are more likely to be arrested for marijuana law violations than White people, despite similar rates of use and sales across racial groups. Marijuana legalization has dramatically reduced the number of Black and Latinx people arrested for marijuana-related conduct, yet racial disparities persist. Initial data show that while legalization substantially reduced the total number of Black and Latinx people arrested for marijuana offenses, it did not eliminate the forces that contributed to the disparity in the first place, such as the overpolicing of low-income neighborhoods, racial profiling, and other racially motivated police practices.

In Colorado, for example, White people benefitted most from the declines in marijuana arrests, which decreased by 51 percent, compared to 33 percent for Latinx people, and 25 percent for Black people between 2012 and 2014. The marijuana arrest rate for Black people (348 per 100,000) in Colorado was nearly triple that of White people (123 per 100,000) in 2014. The post-legalization arrest rate for Black individuals in Washington is reported to be double the arrest rate for other races and ethnicities. In Alaska, both Black and White people experienced dramatic declines in marijuana arrests between 2013 and 2015, 95 and 92 percent respectively, yet disparities remain (see Chart 17 below).  Of the 17 marijuana arrests in Alaska in 2016, 29 percent were of Black people (a racial group that comprises only 4 percent of the state’s population). Alaska’s marijuana arrest rate for Black people (17.7 per 100,000) is ten times greater than that of White people (1.8 per 100,000). A similar pattern has emerged in Washington, D.C....

In several states, marijuana legalization for adult use has had the unintended consequence of reducing historically high numbers of youth (under 18 years of age) and young adults (between 18 and 20 years old) stopped and arrested for marijuana offenses. However, these reductions are inconsistent from state-to-state and, in some circumstances, youth now comprise a growing number of people charged with marijuana offenses.

Between 2012 and 2015, marijuana court filings in Colorado fell 86 percent for adults 21 years of age and older, and they declined by 69 percent for youth under 18 years of age and 78 percent for young adults 18-to-20 years old.190 Arrests followed a similar trend in the state between 2012 and 2014 wherein the marijuana offense arrest rate for adults 21 and older decreased by 79 percent and young adults 18-to-20 years old experienced a 34 percent decrease in marijuana arrest rates.191 At the same time, the number of youth under 18 years of age cited for marijuana offenses increased by five percent, which amounts to a one percent increase in the rate per 100,000.192

In Oregon, marijuana arrest rates declined by 92 percent between 2013 and 2015 for adults 18 years of age and older, compared to 80 percent for youth under 18 years of age (See Chart 21). In 2016, the marijuana arrest rate for Oregon youth (19.1 per 100,000) was nearly 7 times the adult rate (2.8 per 100,000).193 Similarly, in Washington, marijuana possession convictions declined by 99.1 percent for adults 18 years of age and older and 56 percent for youth under 18 years of age between 2012 and 2015. In 2015, 98 percent of all marijuana possession convictions in Washington (1,691 of 1,723) were of youth.

January 23, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Friday, January 19, 2018

US Sentencing Commission releases new proposed guideline amendments to address synthetic drugs

As reported in this official press release, this morning "the United States Sentencing Commission approved publication of several proposed amendments to the federal sentencing guidelines, including proposals addressing the treatment of synthetic drugs under the guidelines." Here is more about today's USSC action and the broader on-going amendment cycle:

Today’s proposed amendments stem from a multiyear Commission study of some of the more prevalent and dangerous synthetic drugs in the federal system. The proposals adopt a class-based approach for synthetic cathinones and cannabinoids, two types of synthetic drugs studied by the Commission.  The proposal also defines the term “synthetic cannabinoid” and establishes a single marihuana equivalency for each class.

The Commission also proposed an increase to penalties for fentanyl offenses by setting the offense level for fentanyl equal to the higher offense level currently assigned to fentanyl analogues. The proposal provides more exact guideline definitions for the terms “fentanyl” and “fentanyl analogue”.  An enhancement for misrepresenting or marketing fentanyl or fentanyl analogues as another substance was also proposed.

Circuit Judge William H. Pryor, Jr., the acting chair of the Commission remarked, "A growing number of synthetic drugs are being developed and trafficked on the illicit drug market. It is important that the sentencing guidelines account for our most current understanding of the chemical structure, potency and effect, trafficking trends, and community impact of these drugs. These proposals aim to provide greater clarity, guidance, and efficiency in synthetic drug cases."

During the synthetic drugs study undertaken from August 2016 through December 2017, three fact-gathering public hearings were conducted on each drug type. The Commission received testimony from dozens of experts, including federal judges, scientists, law enforcement officers, and emergency medical personnel.... Several other technical or clarifying amendments were proposed today, including an amendment addressing two application issues relating to the immigration guidelines.

Today's proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.

A public comment period on the newly proposed amendments will close on March 6, 2018, with a reply comment period closing March 28, 2018. To inform public comment, the Commission will soon release an online data briefing on synthetic drugs that highlights some of the findings from the Commission’s study. Two public hearings will also be scheduled in February and March.

The intricate details of these new proposed amendment are set forth in this reader-friendly USSC document, and the intricate details of the holdover proposed amendment are set forth in this reader-friendly USSC document. My own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works. But, of course, every possible guideline change can be very consequential to any defendant and any lawyers involved in any case implicating a perhaps-soon-to-be-amended-guideline.

January 19, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Friday, January 12, 2018

Supreme Court grants cert on a couple of (small?) sentencing cases

Via this order list, the US Supreme Court added twelve cases to its merits docket.  A couple involve sentencing issues, and here they are with an assist from SCOTUSblog:

Chavez-Meza v. United States, No. 17-5639

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

Lagos v. United States, No. 16-1519

Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.

As the title of this post suggests, my first take is that these issues are pretty small in scope and significance.  But I am still always excited to see SCOTUS care about sentencing matters.

January 12, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Monday, January 08, 2018

"Mass Incarceration and the War on Drugs"

The title of this post is the title of this notable new paper authored by Scott Cunningham and Sam Kang that a helpful colleague sent my way.  Here is its abstract:

US incarceration rates quintupled from the early 1970s to the present, leading to the US becoming the most incarcerated OECD country in the world.  A driving cause behind this growth was a nationwide shift to more punitive criminal justice policy, particularly with respect to drug related crimes.  This movement has since been characterized as the "war on drugs."  In this manuscript, we investigate the impact of rising incarceration rates on drug use and drug markets by exploiting a natural experiment in the Texas penitentiary system. In 1993, Texas made massive investments into its prison infrastructure which led to an over doubling of the state's prison capacity.  The effect was that Texas's incarceration rates more than doubled, due in large part to declining paroles. 

We use this event to study the effect that mass incarceration had on drug markets. We find no effect on drug arrests, drug prices or drug purity.  We also find no effect on self-referred cocaine or heroin treatment admissions.  However, we do find large negative effects on criminal justice referrals into treatment for cocaine and heroin, suggesting that mass incarceration reduces drug use in the population.  Furthermore, our results indicate that this decline is driven by incapacitation effects as opposed to deterrence effects.

January 8, 2018 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Sunday, January 07, 2018

Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies

PrisonPopuGraphicOver at the Washington Post's WonkBlog, Keith Humphreys has this important little discussion of the federal prison population under the headlined "The number of people in federal prisons is falling, even under Trump."  Here are excerpts (with a few lines emphasized for some follow-up commentary):

When states began shrinking their prison populations almost a decade ago, the federal prison system was still growing each year and thereby undermining progress in reducing mass incarceration. But in the past four years, the federal system has cut its inmate population by one-sixth, a decrease of over 35,000 prisoners.

Because criminal justice is mainly the province of the states, the federal prison system holds only about 13 percent of U.S. inmates. Yet that is still a significant number of people in absolute terms: The system held 219,300 inmates at its peak in 2013. Four subsequent years of significant contraction dropped the federal inmate population to 184,000 by the end of 2017.

Obama-era changes to drug crime prosecution and sentencing coupled with a historic level of clemency grants to federal inmates by President Barack Obama helped bring the federal prison system to its lowest population size since mid-2004 and its lowest incarceration rate (i.e., adjusted for population) since the end of 2002.

Given President Trump’s penchant for “tough on crime” rhetoric, some observers may find it surprising that the federal prison population kept dropping under the first year of the Trump administration. The most likely cause is also the most obvious. When a nation is blessed with two decades of falling crime rates, this eventually translates into lower incarceration rates because there just aren’t as many offenders to arrest, charge and imprison.

Whether the federal prison population continues to decline will depend in part on Trump administration policies. Attorney General Jeff Sessions recently reversed the Obama-era policy of avoiding mandatory minimum sentences in low-level drug cases, which could result in some future growth in the federal inmate population even if crime continues to fall.

The other key determinant of the federal prison population’s future is whether Trump will make use of his powers to pardon or commute the sentences of federal inmates. He only did so for one inmate this year, but that doesn’t necessarily mean he won’t grant more clemencies later.

Though it is important and useful to notice that the federal prison population continued its downward trend in the first year of the Trump Administration, it is not quite accurate to attribute this reality to either "two decades of falling crime rates" or to Presidential commutation practices.  For starters, we had falling crimes rates in the decade from 1992 through 2002, and yet the federal prison population more than doubled from less than 80,000 inmates in 1992 to more than 163,000 inmates in 2002.  And we had another decade of falling crimes rates from 2002 through 2012, and yet the federal prison population rose another 55,000 inmates in that period.  And, of course, crimes rates started ticking up significantly in 2015 and 2016.

Moreover, and perhaps even more importantly, there is actually a very limited (and quite unclear) relationship between the FBI's reported reductions in violent and property crimes — which is the data base for "falling crime rates" — and the federal criminal caseload which is primarily made up of drug and immigration and firearm and fraud offenses.  Indeed, in light of the empirics of the opioid crisis — not to mention increased marijuana activity thanks to state legal reforms — there is reason to speculate that federal drug offenses have actually been rising (perhaps significantly) in recent years.  The dynamics surrounding recent crime rates for federal immigration and firearm and fraud offenses are hard to assess, but that very reality is part of the reason it is hard to link federal prison population changes to what we know (and do not know) about crime rates.  But, without any doubt, there are still plenty of "offenders to arrest, charge and imprison" engaged in the activities that serve as the modern bread-and-butter of federal prosecution.  Though there are a range of linkages between various crime rates and various federal prosecutorial policies and practices, it is very hard to see and measure and assess with any confidence how basic criminal offending (especially as to classic state crimes) may directly impact the size of federal prison populations.

What we can effectively see and measure are changes in federal sentencing laws and federal prosecutorial practices, and these changes suggest a set of intricate stories help account for recent federal prison population changes.  For starters, the US Sentencing Commission enacted a set of broad retroactive changes to the federal drug sentencing guidelines, with crack guideline reductions in 2007 and 2011 and the "Drugs -2" reductions in 2014.  These changes reduced the sentences of, and is continuing to lead to the early release of, many thousands of federal prisoners.  In addition, and perhaps even more statistically important for the very latest federal prison data, federal prosecutors after 2012 began decreasing dramatically the number of cases getting all the way to federal sentencing.  According to US Sentencing Commission data, in Fiscal Year 2012, federal prosecutors brought over 84,000 cases to sentencing, whereas by Fiscal Year 2016, federal prosecutors brought fewer than 67,750 cases to sentencing.  And, especially with a slow transition to new US Attorney positions, it may take some time for the new Attorney General to ramp up yearly federal prosecutions (assuming he even wishes to do so).

In other words, the always dynamic stock and flow story of prison populations provides a somewhat more granular understanding of declines in the federal prison population.  Changes to federal sentencing laws made retroactive has had a significant impact on the "stock" of federal prisons.  (Prez Obama's commutations are a small part of this "stock" story, but not until they really got going in 2016, and in the end more than 25 federal prisoners got reduced sentences thanks to retroactive guideline changes for every prisoner who got a commutation from Prez Obama.)  And while guideline changes were reducing the federal prison "stock," it seems the prosecutorial policies announced by Attorney General Holder in 2013 — and perhaps other factors, including decreased national concerns about crime — finally began to reduce what had previously been, for two decades, an ever-increasing federal prison "flow."

I would predict that the May 2017 Sessions charging/sentencing memo could contribute, over time, to increasing both the stock and the flow of the federal prison population.  But other directions coming from Main Justice might complicate this story.  AG Sessions has urged US Attorneys to focus on violent crimes, and there may well be fewer of these cases to bring and they may take more time to prosecute than lower-level drug and gun and immigration cases.  But, of course, the AG has also expressed concerns about drug and gun and immigration cases, and he has been seeking to hire and empower more federal prosecutors in certain arenas.  I will be especially watching how all these developments ultimately impact the US Sentencing Commission's data on cases sentenced (and average sentence imposed) in order to try to predict where the federal prison population may be headed next.

January 7, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Candid confession of error on mandatory minimums from former Idaho Attorney General and Chief Justice

This recent op-ed from a local newspaper, headlined "Why warehouse low-risk drug offenders?," caught my attention primarily based on its author and its very first sentence.  The author is Jim Jones, and here is his bio from the piece: "Jim Jones, an Idaho native, was elected as Idaho Attorney General in 1982 and served two elected terms.  He was elected to the Idaho Supreme Court in 2004 and re-elected in 2010.  Jones served as Chief Justice from August 2015 until his retirement from the Supreme Court in January."  And here is how his commentary starts and ends:

I’ll be the first to admit that it was a mistake to support mandatory minimum sentences for drug traffickers during my tenure as Idaho Attorney General in the 1980s.  Most observers have come to realize that long mandatory sentences are not appropriate for every offender.  Legislatively mandated sentences tie the hands of judges who are best positioned to tailor the appropriate punishment for the crimes committed by a particular defendant.  And, while they do not reduce recidivism, they do needlessly inflict damage on the families of low-risk offenders.  In 2014, Idaho adopted the Justice Reinvestment Act to provide for earlier release of low-level offenders, to ensure their success by providing them greater supervision, to reduce the number of repeat offenders, and to reduce the cost of Idaho’s prison program.  The legislation had broad-based support and holds out great promise for success....

Having observed the judicial system from the inside for 12 years, I believe that our trial court judges have a good feel for who deserves to be incarcerated for a long stretch and who shows promise for staying out of further trouble.  Our judges take into account who is before them and whether they pose a societal risk, rather than just the weight of the drugs they had in their control.  That is how justice is served.  It is not served by a one-size-fits-all system of sentencing where a set of scales determines the length of the prison term.

The court system has worked hard to educate judges as to the correct balance between incarceration and rehabilitation.  Judges share information about sentencing for various offenses throughout the state to bring about a certain amount of uniformity.  The judicial system has developed drug courts to help lower-level offenders get free of drugs and put their lives back on track.  These are the measures that can reduce recidivism, salvage those who can be rehabilitated, and keep families together.  Mandatory sentences do not.  My 1980s mindset was wrong, as was the 1992 legislation.

Last year, Reps. Ilana Rubel and Christy Perry introduced legislation to eliminate the mandatory minimum sentences in the 1992 statute.  Their bill retained the maximum sentences for drug trafficking but left the length of the sentence up to the judge, who can set a minimum prison term of his or her choosing.  That legislation will come up again this year and people should urge their legislators to support it.

January 7, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, January 04, 2018

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

Confirming morning reports, today Attorney General Jeff Sessions issued this new one-page memo to all US Attorneys on the topic of "Marijuana Enforcement." The memo rescinds the Cole and Ogden and related Obama-era enforcement memos (calling them "unnecessary"), and does so without announcing any formal or even informal new policy while saying DOJ's well-established general policies and principles for all federal prosecutions should govern.

Notably, this press release issued with the new Sessions marijuana memo provides some of thematic justifications for his decision:

The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents....

In the memorandum, Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities. This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," said Attorney General Jeff Sessions. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."

Interestingly, this new AP article from Colorado, headlined "U.S. Attorney for Colorado: Status quo on marijuana enforcement," suggests local control could mean little or no change in some regions:

The U.S. Attorney for the District of Colorado said Thursday there will be no immediate changes in marijuana enforcement after Attorney General Jeff Sessions rescinded a policy that paved the way for legalized pot to flourish in states across the country.

“Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions,” U.S. Attorney Bob Troyer said.

“The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state.

“We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”

It will be interesting to see whether a host of other US Attorneys will explain, in general or in detail, how they play to operationalize the "trust and local control" that AG Sessions says he has now given them.

Related posts from here and MLP&R:

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

How will local US Attorney's likely respond to new marijuana enforcement guidance coming from AG Jeff Sessions?

The question in the title of this post is prompted by this morning's big federal criminal justice news reported here by AP (and also covered here at Marijuana Law, Policy & Reform):

Attorney General Jeff Sessions is rescinding the Obama-era policy that had paved the way for legalized marijuana to flourish in states across the country, two people with knowledge of the decision told The Associated Press.  Sessions will instead let federal prosecutors where pot is legal decide how aggressively to enforce federal marijuana law, the people said. The people familiar with the plan spoke on condition of anonymity because they were not authorized to discuss it before an announcement expected Thursday....

The move by President Donald Trump’s attorney general likely will add to confusion about whether it’s OK to grow, buy or use marijuana in states where pot is legal, since long-standing federal law prohibits it.  It comes days after pot shops opened in California, launching what is expected to become the world’s largest market for legal recreational marijuana and as polls show a solid majority of Americans believe the drug should be legal.

While Sessions has been carrying out a Justice Department agenda that follows Trump’s top priorities on such issues as immigration and opioids, the changes to pot policy reflect his own concerns.  Trump’s personal views on marijuana remain largely unknown.

Sessions, who has assailed marijuana as comparable to heroin and has blamed it for spikes in violence, had been expected to ramp up enforcement.  Pot advocates argue that legalizing the drug eliminates the need for a black market and would likely reduce violence, since criminals would no longer control the marijuana trade....

Sessions’ policy will let U.S. attorneys across the country decide what kinds of federal resources to devote to marijuana enforcement based on what they see as priorities in their districts, the people familiar with the decision said.

Sessions and some law enforcement officials in states such as Colorado blame legalization for a number of problems, including drug traffickers that have taken advantage of lax marijuana laws to hide in plain sight, illegally growing and shipping the drug across state lines, where it can sell for much more. The decision was a win for pot opponents who had been urging Sessions to take action....

The change also reflects yet another way in which Sessions, who served as a federal prosecutor at the height of the drug war in Mobile, Alabama, has reversed Obama-era criminal justice policies that aimed to ease overcrowding in federal prisons and contributed to a rethinking of how drug criminals were prosecuted and sentenced.  While his Democratic predecessor Eric Holder told federal prosecutors to avoid seeking long mandatory minimum sentences when charging certain lower level drug offenders, for example, Sessions issued an order demanding the opposite, telling them to pursue the most serious charges possible against most suspects.

I want to see exactly what new guidance and statements will come from the Department of Justice and Attorney General Sessions before opining on what this all likely means and portends for federal criminal enforcement and sentencing.  But the question that serves as the title of this post strikes me as the really critical one concerning what comes next. I am inclined to guess that a few local US Attorneys we eager to be free of restrictions created by the 2013 Cole Memo, but that many others have been happy to have a reason not to be to focused on state-legal marijuana business activity. How the implement the new instructions from their boss will be extremely interesting and important for federal marijuana policy, politics and practices in the weeks and months ahead.

Related post from MLP&R:

UPDATEA helpful reader highlighted to me that this news comes on the heels of the announcement yesterday, as detailed in this press release, that "Attorney General Jeff Sessions [Wednesday] announced the appointment of 17 federal prosecutors as Interim United States Attorneys pursuant to 28 U.S.C. § 546."

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Monday, January 01, 2018

Prez Reagan's Secretary of State laments "The Failed War on Drugs"

There is nothing really all that notable about this recent New York Times op-ed, headlined "The Failed War on Drugs," save for its authors.  George Shultz, who served as Secretary of State in the Reagan Administration, penned the piece alon with Pedro Aspe, a former secretary of finance in Mexico.  Actually, the op-ed is also notable because it is has some shaky statements (like its suggestion Nancy Reagan tried to charge the modern US drug war), but it is still worth seeing how it makes its case for modern reform in the Americas:

The war on drugs in the United States has been a failure that has ruined lives, filled prisons and cost a fortune.  It started during the Nixon administration with the idea that, because drugs are bad for people, they should be difficult to obtain.  As a result, it became a war on supply.

As first lady during the crack epidemic, Nancy Reagan tried to change this approach in the 1980s.  But her “Just Say No” campaign to reduce demand received limited support. Over the objections of the supply-focused bureaucracy, she told a United Nations audience on Oct. 25, 1988: “If we cannot stem the American demand for drugs, then there will be little hope of preventing foreign drug producers from fulfilling that demand.  We will not get anywhere if we place a heavier burden of action on foreign governments than on America’s own mayors, judges and legislators. You see, the cocaine cartel does not begin in Medellín, Colombia. It begins in the streets of New York, Miami, Los Angeles and every American city where crack is bought and sold.”

Her warning was prescient, but not heeded.  Studies show that the United States has among the highest rates of drug use in the world.  But even as restricting supply has failed to curb abuse, aggressive policing has led to thousands of young drug users filling American prisons, where they learn how to become real criminals.

The prohibitions on drugs have also created perverse economic incentives that make combating drug producers and distributors extremely difficult.  The high black-market price for illegal drugs has generated huge profits for the groups that produce and sell them, income that is invested in buying state-of-the-art weapons, hiring gangs to defend their trade, paying off public officials and making drugs easily available to children, to get them addicted.

Drug gangs, armed with money and guns from the United States, are causing bloody mayhem in Mexico, El Salvador and other Central American countries. In Mexico alone, drug-related violence has resulted in over 100,000 deaths since 2006.  This violence is one of the reasons people leave these countries to come to the United States.

First the United States and Mexican governments must acknowledge the failure of this strategy.  Only then can we engage in rigorous and countrywide education campaigns to persuade people not to use drugs.  The current opioid crisis underlines the importance of curbing demand.  This approach, with sufficient resources and the right message, could have a major impact similar to the campaign to reduce tobacco use.

We should also decriminalize the small-scale possession of drugs for personal use, to end the flow of nonviolent drug addicts into the criminal justice system.  Several states have taken a step in this direction by decriminalizing possession of certain amounts of marijuana.  Mexico’s Supreme Court has also declared that individuals should have the right to grow and distribute marijuana for their personal use.  At the same time, we should continue to make it illegal to possess large quantities of drugs so that pushers can be prosecuted and some control over supply maintained.

Finally, we must create well-staffed and first-class treatment centers where people are willing to go without fear of being prosecuted and with the confidence that they will receive effective care.  The experience of Portugal suggests that younger people who use drugs but are not yet addicted can very often be turned around.  Even though it is difficult to get older addicted people off drugs, treatment programs can still offer them helpful services....

We have a crisis on our hands — and for the past half-century, we have been failing to solve it.  But there are alternatives.  Both the United States and Mexico need to look beyond the idea that drug abuse is simply a law-enforcement problem, solvable through arrests, prosecution and restrictions on supply.  We must together attack it with public health policies and education.  We still have time to persuade our young people not to ruin their lives.

January 1, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, December 28, 2017

Silk Road creator Ross Ulbricht raises notable sentencing issue in SCOTUS cert petition

As detailed in this new Reason piece, headlined "Ross Ulbricht Files Appeal to the Supreme Court on His Life Sentence Without Parole: Silk Road founder's appeal stresses the dangerous Fourth and Sixth Amendment implications of his prosecution and sentencing," a notable federal criminal defendant is bringing some notable issues to the Supreme Court via a new cert petition. The full cert petition is available at this link, and here are the petition's seemingly simple questions presented:

1. Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.

2. Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

SCOTUS gurus know that the first question intersects with issues in the pending Carpenter case, and that fact alone might make this high-profile case a poor vehicle for getting to the post-Booker sentencing issue also raised. The petition, notably, suggests "It would be most efficient for the Court to resolve the question presented in this case now, while it is considering a related question in Carpenter."

SCOTUS gurus know that the second question is one that has been repeatedly avoided by SCOTUS since its Booker-Rita rulings wherein the late Justice Scalia suggested that, even within the advisory guideline system created by Booker, there must be some Sixth Amendment limits on findings by judges to justify lengthy prison sentences.  Despite pushing the matter, Justice Scalia could not garner enough votes for this Sixth Amendment issue to be addressed by the full Court on the merits before his untimely demise.  I am not really expecting a different reality now, although Ulbricht's lawyers astutely notes in his cert petition that Justice Scalia's replacement has previously suggested concerns on this front:

Shortly after Justice Scalia’s opinion in Jones, then-Judge Gorsuch similarly observed that “[i]t is far from certain whether the Constitution allows” a judge to increase a defendant’s sentence within the statutorily authorized range “based on facts the judge finds without the aid of a jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (citing Jones).  Three years later, however, that question re- mains unanswered by the Court, despite intervening opportunities to address it.

A few prior related posts on sentencing and appeals of Ross Ulbricht:

December 28, 2017 in Advisory Sentencing Guidelines, Blakely in the Supreme Court, Booker and Fanfan Commentary, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, December 20, 2017

"Three ways conservatives can lead criminal justice reform"

The title of this post is the title of this new commentary authored by Bob McClure, who is president and CEO of The James Madison Institute. Here are excerpts:

As head of a conservative think tank dedicated to principles of limited government and constitutional liberties, I find two things increasingly obvious: Our criminal justice system is in dire need of comprehensive reform, and that effort is being led not by bureaucrats in Washington but by policymakers and leaders in the states.  I look around the country and see great strides by states like Georgia, Oklahoma, Texas and Louisiana.  I see policymakers in my home state of Florida starting to join the movement, and I want to get excited at the possibilities for real culture-changing efforts.

The reforms these states have passed will ultimately accomplish two things: They will improve public safety and will save millions of taxpayer dollars.  Nevertheless, the road forward is anything but a clear or easy journey.

In our organization’s research of policy initiatives, a particular statistic disappoints me more than all others: our nation’s incarceration rate.  According to data from the International Center for Prison Studies, the United States currently incarcerates approximately 737 people per 100,000 citizens, counting both adults and juveniles.  This puts us right at the top of the list -- more than Iran, more than Russia, more than Rwanda.  We owe it to ourselves to ask why this is the case and how we can correct course....

Drug and non-violent offenses have created a revolving door in our jails and prisons, both at the state and federal levels.  It’s estimated that as many as one-fourth to one-third of our inmates are in prison for drug-related offenses.  Many are there because of oppressive sentencing rules that have eliminated the proper role of judges and created an incarceration-industrial complex trapping far too many families in a cycle of prison, poverty and despair.  Consequently, we have seen our prisons jam-packed with hundreds of thousands of offenders who have the potential to be rehabilitated but who end up sliding further down the path of crime and punishment....

There are three specific actions that can and should be championed at the state level to continue the progress conservatives have made in addressing criminal justice policy reform:

1.  Restore the role of judges in the system. For far too long, judicial discretion in sentencing has been eroded, the unfortunate result of well-intentioned conservatives over many years.

2.  Begin to address the distinction between those trafficking in narcotics as a criminal enterprise and those individuals selling smaller amounts of drugs to feed their addiction.  We want to lock up the bad guys feeding poison to our children, but we should be able to distinguish between those hardened criminals and addicts needing treatment.

3.  Reaffirm the need for substance abuse and mental health approaches in the justice system. The cost for drug crimes is a sliding scale over time.  As individuals reoffend and continue the cycle, the long-term costs of incarceration, safety net use, and lower employability far outweigh the short-term investment in treatment and rehabilitation.

This trio of actions is just a small piece of a very broad conservative policy reform agenda that states must champion.  As we seek to promote conservative principles and at the same time address the challenges impacting our society from scourges like addiction, it is my hope that states can be the shining example of how to lead the way forward.

December 20, 2017 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Tuesday, December 19, 2017

Notable account of notable application of death penalty in China

This article from The Guardian, headlined "Thousands in China watch as 10 people sentenced to death in sport stadium," highlights that criminal procedure and drug enforcement in another large nation can look a lot different than they do in the United States.  Here are the details:

A court in China has sentenced 10 people to death, mostly for drug-related crimes, in front of thousands of onlookers before taking them away for execution.

The 10 people were executed immediately after the sentencing in Lufeng in southern Guangdong province, just 160km (100 miles) from Hong Kong, according to state-run media. Seven of the 10 executed were convicted of drug-related crimes, while others were found guilty of murder and robbery.

Four days before the event, local residents were invited to attend the sentencing in an official notice circulated on social media.  The accused were brought to the stadium on the back of police trucks with their sirens blaring, each person flanked by four officers wearing sunglasses.

They were brought one by one to a small platform set up on what is usually a running track to have their sentences read, according to video of the trial.  Thousands watched the spectacle, with some reports saying students in their school uniforms attended. People stood on their seats while others crowded onto the centre of the field, some with their mobile phones raised to record the event, others chatting or smoking.

China executes more people every year than the rest of the world combined, although the exact figure is not published and considered a state secret.  Last year the country carried out about 2,000 death sentences, according to estimates by the Dui Hua Foundation, a human rights NGO based in the United States.  China maintains the death penalty for a host of non-violent offences, such as drug trafficking and economic crimes.

However, public trials in China are rare.  The country’s justice system notoriously favours prosecutors and Chinese courts have a 99.9% conviction rate. The trend to reintroduce open-air sentencing trials is reminiscent of the early days of the People’s Republic, when capitalists and landowners were publicly denounced.

The most recent public sentencing and subsequent executions were not a first for Lufeng. Eight people were sentenced to death for drug crimes and summarily executed five months ago in a similar public trial, according to state media.

The town was the site of a large drug bust in 2014, when 3,000 police descended on Lufeng and arrested 182 people. Police confiscated three tonnes of crystal meth, and authorities at the time said the area was responsible for producing a third of China’s meth.

December 19, 2017 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (6)

Monday, December 18, 2017

"The Myth of the Playground Pusher: In Tennessee and around the country, 'drug-free school zones' are little more than excuses for harsher drug sentencing."

The title of this post is the headline of this extended article authored by C.J. Ciaramella and Lauren Krisai published in the January 2018 issue of Reason magazine. The full article merits a full read, and here is just a snippet of the important work in this piece:

Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination — a lingering hangover from the drug war hysteria of the 1980s.  Yet state legislatures have made the designated zones both larger and more numerous, to the point where they can blanket whole towns. In the process, they have turned minor drug offenses into lengthy prison sentences almost anywhere they occur.

In some cases, police have set up controlled drug buys inside school zones to secure harsher sentences.  That gives prosecutors immense leverage to squeeze plea deals out of defendants with the threat of long mandatory minimum sentences.

In recent years, this approach has begun to trouble some state lawmakers, and even some prosecutors are growing uncomfortable with the enormous power — and in some cases, the obligation — they have been handed to lock away minor drug offenders.  Nashville District Attorney Glenn Funk ran for office in 2014 on a platform that included not prosecuting school zone violations except in cases that actually involve children.  He says almost every single drug case referred to his office falls within a drug-free zone.

He's right.  Data obtained from the Tennessee government show there are 8,544 separate drug-free school zones covering roughly 5.5 percent of the state's total land area.  Within cities, however, the figures are much higher.  More than 27 percent in Nashville and more than 38 percent in Memphis are covered by such zones.  They apply day and night, whether or not children are present, and it's often impossible to know you're in one.

For a drug offender charged with possession of under half a gram of cocaine with intent to distribute, a few hundred feet can mean the difference between probation vs. eight years of hard time behind bars.  "In places like Nashville, almost the entire city is a drug-free zone," Funk says.  "Every church has day care, and they are a part of drug-free zones.  Also, public parks and seven or eight other places are included in this classification.  And almost everybody who has driven a car has driven through a school zone.  What we had essentially done, unwittingly, was increased drug penalties to equal murder penalties without having any real basis for protecting kids while they're in school."...

States created drug-free school zones thinking that the threat of draconian prison sentences would keep dealers away from schools.  But the very size of these zones undercuts that premise.  If a whole city is a drug-free zone, then the designation has no targeted deterrent effect. In practice, it exists to put more people in prison for longer periods of time, not to keep children safe.

"Drug-free school zone laws show how good intentions can go horribly wrong," says Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.  "Adult offenders who aren't selling drugs to or even near kids are getting hammered with long sentences.  Most don't even know they are in a school zone. These laws aren't tough on crime.  They're just dumb."

By covering wide swaths of densely populated areas in drug-free zones, states end up hitting low-level and first-time drug offenders with sentences usually reserved for violent crimes.  Tennessee's drug-free school zone laws bump up drug felonies by a level and eliminate the possibility of an early release.  For example, a first-time drug offender found guilty of a Class C felony for possession with intent to distribute of less than half a gram of cocaine — which carries a maximum six-year sentence — instead receives a Class B felony with a mandatory minimum sentence of eight years.

These penalties are zealously applied. Knoxville criminal defense attorney Forrest Wallace says that one of his clients received an enhanced drug sentence for merely walking through a school zone that bisected the parking lot of his apartment complex on his way to meet the informant who had set him up.  The client received a normal sentence for the sale of the cocaine, but an enhanced charge of possession with intent to distribute for passing through the school zone.  "If they can prove it's in a zone, you know they're going to charge it," Wallace says.  "That's just the way it is."

Undercover cops and confidential informants sometimes go to extra lengths to get these enhanced sentences.  David Raybin, a Nashville criminal defense attorney, says that police informants often purposely set up deals in school zones, a practice that has led to accusations of entrapment from defendants and rebukes from judges dismayed by the practice.  "The police will frequently have people sell drugs in a school zone so they can enhance them," Raybin says.  "The only cases that I'm aware of involving dealing drugs on or in a school are always kids selling to other kids.  Usually in those cases, you don't want them getting a two-year mandatory minimum. It's just totally in appropriate."

December 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Another look at trend to prosecute some opioid overdose deaths as homicides

This morning's Wall Street Journal has this new article on the (not-all-that) new trend of considering homicide charges in response to drug-overdose deaths.  The full lengthy headline of the lengthy article is "Prosecutors Treat Opioid Overdoses as Homicides, Snagging Friends, Relatives As U.S. drug deaths hit record levels, prosecutors and police are trying a tactic that echoes tough-on-crime theories of the 1990s." Here are excerpts (with a few lines emphasized for follow-up commentary):

After Daniel Eckhardt’s corpse was found on the side of a road in Hamilton County, Ohio, last year, police determined he died of a heroin overdose. Not long ago, law enforcement’s involvement would have ended there. But amid a national opioid-addiction crisis fueling an unprecedented wave of overdose deaths, the investigation was just beginning.

Detectives interrogated witnesses and obtained search warrants in an effort to hold someone accountable for Mr. Eckhardt’s death.  The prosecutor for Hamilton County, which includes Cincinnati and its suburbs, charged three of Mr. Eckhardt’s companions, including his ex-wife and her boyfriend, with crimes including involuntary manslaughter, an offense carrying a maximum prison sentence of 11 years.

Mr. Eckhardt voluntarily took the heroin that killed him, but prosecutors alleged the trio were culpable because they bought and used heroin with him that they knew could result in death.  The indictments were part of a nationwide push to investigate overdose deaths as homicides and seek tough prison sentences against drug dealers and others deemed responsible.  It’s an aggressive tactic law-enforcement officials say they’re using in a desperate attempt to stanch the rising tide of overdose deaths.

Fueled by a flood of heroin laced with fentanyl and other powerful synthetic opioids, the overdose death rate in Hamilton County more than tripled between 2006 and 2016 to 50 per 100,000 people, or four times as many as those killed in traffic accidents.  Nationally, some 64,000 Americans died from overdoses last year, up 86% from 2006, according to the Centers for Disease Control and Prevention.

A newly created heroin task force in Hamilton County has investigated hundreds of deaths in the past two years, resulting in a dozen involuntary manslaughter indictments in state court and 13 federal indictments for distribution of controlled substances resulting in death. “The deaths—that’s why. All the people dying,” Cmdr. Thomas Fallon, who leads the Hamilton County task force, says of the prosecution push. “Even in the cocaine and crack days, people didn’t die like this.”

At least 86 people nationwide received federal prison sentences last year for distributing drugs resulting in death or serious injury, up 16% from 2012, according to the U.S. Sentencing Commission, a federal agency that determines sentencing guidelines for judges.  An analysis of news reports found 1,200 mentions nationally about drug-death prosecutions in 2016, three times the number in 2011, according to a recent report by the Drug Policy Alliance, a nonprofit group that supports decriminalizing drug use.

The prosecutions often employ tough-on-crime legislation born of the crack-cocaine epidemic of the 1980s and 1990s.  These state and federal laws hold drug distributors liable for overdose deaths.  Selling even small amounts can result in decades or even life in prison.

In some states, such laws were rarely enforced until recently.  Benjamin J. Agati, a veteran prosecutor in the New Hampshire Attorney General’s office, has helped train police departments throughout the state in how to build cases under the state’s drug-induced homicide law, which carries a maximum penalty of life in prison. The law was enacted in the late 1980s but was rarely applied before the surge in opioid deaths, Mr. Agati says....

The prosecutions sometimes nab members of drug-distribution gangs like that of Navarius Westberry.  Last year, Mr. Westberry pleaded guilty in federal court in Kentucky to operating a drug-trafficking ring that distributed up to a kilogram of heroin and 50 grams of fentanyl over an 18-month period that killed at least one person.  He was sentenced to life in prison.  But in courtrooms around the country, prosecutors are also sweeping up low-level dealers who are addicts trying to support their habit, as well as friends and family members of overdose victims who bought or shared drugs with the deceased. Some critics of the prosecution tactic say these users need treatment, not harsh prison sentences.

Critics see the prosecutions as more of the same drug-war tactics that have filled America’s prisons with nonviolent criminals but done little to stop illicit drug use. There’s scant evidence that fear of prison deters addicts from using, and for every dealer put behind bars, another is ready to take his place, says Lindsay LaSalle, an attorney with the Drug Policy Alliance.

Law-enforcement officials say they’ve seen some signs the prosecutions may be deterring dealers, including jailhouse phone calls they say they’ve overheard in which inmates warn associates that police are pressing homicide charges against drug traffickers.  They say drug-death prosecutions are just one piece of a broader strategy to combat the crisis, including urging addicts into rehab and taking down large-scale traffickers....

A two-hour drive south from Hamilton County, Kerry B. Harvey, the mustachioed U.S. attorney for eastern Kentucky from 2010 to early 2017, made prosecuting drug-deaths a priority around 2015.  He used a 1986 federal law that had rarely been applied in the district, which established a mandatory 20-years-to-life sentence for distributing drugs that resulted in death or serious injury.  The penalty grew to life in prison for defendants with prior felony drug convictions.

He saw the approach as a way to bring solace to families devastated by the increasing number of heroin-related deaths in the area.  Plus, the law’s stiff penalties helped persuade dealers to cooperate against bigger suppliers, he said. “When someone is looking at 20 years to life, they’re gonna tell you whatever they know to save themselves,” he said.

Mr. Harvey assigned three prosecutors to work on the cases and began working with local police to investigate overdose deaths as homicides.  Since 2015 one of the prosecutors, Todd Bradbury, has convicted 16 people for selling drugs that resulted in death, two of whom received life sentences.  One of those convicted was Fred Rebmann, who in 2016 sold $60 of fentanyl to Kathleen Cassity.  Ms. Cassity was six months pregnant and died within hours of buying the drugs. Doctors performed an emergency C-section, but failed to save the life of her unborn child.

At the time, Mr. Rebmann was 31 and spent his days scheming to obtain enough heroin to avoid withdrawal. “I would work odd jobs…steal…hold up signs for money,” he said in an email from prison. He also dealt drugs. “There were days I’d sell heroin to get my own, and there were days I sold scrap metal,” he said in a telephone interview.  Addiction doesn’t “disqualify” small-time dealers like Mr. Rebmann from prosecution, says Mr. Bradbury, the prosecutor.  “He knew he was selling something extremely dangerous to a pregnant woman,” he says.  Mr. Rebmann says he didn’t know Ms. Cassity was pregnant.

Mr. Bradbury offered him a deal.  If Mr. Rebmann pleaded guilty, prosecutors would recommend a 20-year sentence that, with credit for good behavior, could be reduced by three years.  If he went to trial and lost, Mr. Rebmann faced mandatory life in prison because of a 2012 heroin-possession conviction.

Mr. Rebmann took the deal and pleaded guilty in August 2016, but U.S. District Judge Joseph M. Hood, a Vietnam War veteran appointed to the bench in 1990, rejected Mr. Bradbury’s sentencing recommendation.  Ms. Cassity died “because you wanted to stick a needle in your arm,” Judge Hood told Mr. Rebmann, according to a transcript of the hearing.  He sentenced Mr. Rebmann to 30 years in prison. “I want it to be known here in Lexington… if you get convicted of dealing in heroin and a death results, 20 years isn’t enough,” Judge Hood said. “Time for coddling is over.”

The lines I have put in bold in the excerpts above are intended to highlight that, as I have sought to make in some prior blogging on this topic, that whether a drug defendant is prosecuted in federal or state court may ultimately matter a whole lot more than whether a defendant actually faces a formal homicide charge (or even whether the defendant can be linked to an overdose death).  As noted at the outset of this article, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 11 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP just based on the quantity of drugs even without a direct connection to an overdose death.  Moreover, a defendant facing homicide charges in state court can perhaps hope that a prosecutor will not be able to prove to a jury a sufficient causal link with a drug death beyond a reasonable doubt; a defendant facing a mere allegation of causing a death in federal court has no right to a jury finding or to demand proof beyond a preponderance of the evidence unless that particular finding directly impacts the statutory sentencing range.

These realities serve to inform and underline the importance and significance of an (Obama-appointed) US Attorney like Kerry Harvey deciding to make these cases a federal priority.  This federal prosecutor's stated belief that federal intervention with extreme federal mandatory minimums brings solace to families and enables going after bigger suppliers ultimately likely results in far more prison for far more defendants than any decision by any state prosecutor to start leveraging state homicide laws.

Some prior related posts:

December 18, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, December 17, 2017

A light dusting of holiday season highlights from Marijuana Law, Policy & Reform

It has been almost two months since I have done a round-up of posts of note from all the blogging I now do over at  Marijuana Law, Policy & Reform.  Here are just some (of many) legal and policy highlights from just the last few weeks at MLP&R that sentencing fans might find worth checking out:

December 17, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Wednesday, December 13, 2017

"Opioids: Treating an Illness, Ending a War"

The title of this post is the title of this new report from The Sentencing Project. Here is how the report's executive summary gets started:

More people died from opioid-related deaths in 2015 than in any previous year.  This record number quadrupled the level of such deaths in 1999. Unlike the heroin and crack crises of the past, the current opioid emergency has disproportionately affected white Americans — poor and rural, but also middle class or affluent and suburban.  This association has boosted support for preventative and treatment-based policy solutions. But the pace of the response has been slow, critical components of the solution — such as health insurance coverage expansion and improved access to medication-assisted treatment— face resistance, and there are growing efforts to revamp the failed and costly War on Drugs.

This report examines the sources of the opioid crisis, surveys health and justice policy responses at the federal and state levels, and draws on lessons from past drug crises to provide guidance on how to proceed. The War on Drugs did not play a major role in ebbing past cycles of drug use, as revealed by extensive research and the reflections of police chiefs. In 2014, the National Research Council concluded: "The best empirical evidence suggests that the successive iterations of the war on drugs — through a substantial public policy effort—are unlikely to have markedly or clearly reduced drug crime over the past three decades."

Growing public awareness of the limited impact and devastating toll of the War on Drugs has encouraged many policymakers and criminal justice practitioners to begin its winding down.  The number of people imprisoned nationwide for a drug offense skyrocketed from 24,000 in 1980 to a peak of 369,000 in 2007.

It has since declined by nearly one-quarter, reaching approximately 287,000 people in the most recent count.  The lessons from past drug crises and the evidence base supporting a public health approach can guide policymakers as they seek an end to the current opioid crisis.

December 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, December 10, 2017

Is due process satisfied by a "minimal indicia of reliability" standard for key sentencing evidence and determinations?

The question in the title of this post is prompted by an opinion issued earlier this year by the Supreme Court of Delaware in Smack v. Delaware, No. 601 (Del. Oct. 11, 2017) (available here). The first paragraph of the Smack opinion provides the basic facts and procedural issue:

Adrin Smack pleaded guilty to four counts of drug dealing, one count of possession of a firearm by a person prohibited, and one count of conspiracy second degree.  At sentencing, the State claimed that Smack acted as a “kingpin” in a drug operation and should be sentenced to the fifteen years recommended by the State instead of the eight years recommended by the defendant.  Smack requested an evidentiary hearing as part of sentencing, and argued that the State must prove his status as a drug “kingpin” by a preponderance of the evidence.  The Superior Court denied Smack’s request for an evidentiary hearing and ruled it could consider evidence offered by the State at sentencing if it met a “minimal indicia of reliability” standard. The court sentenced Smack to an aggregate of fourteen years at Level V followed by probation. Smack appeals and argues the Superior Court violated his due process rights by denying him an evidentiary hearing and applying the wrong burden of proof at sentencing.  According to Smack, the State was required to prove by a preponderance of the evidence that Smack was a drug kingpin.  Because this Court has previously upheld the use of a minimal indicia of reliability standard to consider evidence offered at a sentencing hearing, and due process does not require an evidentiary hearing, we affirm the Superior Court’s decision.

Here is the heart of the Delaware Supreme Court's analysis of the issue and rejection of the defense's contentions (with footnotes removed):

First, this Court settled the evidentiary standard in Mayes v. State, holding that “in reviewing a sentence within statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from the record below that a sentence has been imposed on the basis of demonstrably false information or information lacking a minimal indicium of reliability.”  Smack argues Mayes does not apply because the standard was not contested.  But the fact the standard was not at issue is irrelevant — the Court explicitly stated the sentencing judge “comported with due process by relying on information meeting the ‘minimal indicium of reliability beyond mere allegation’ standard.”  Subsequent cases rely on Mayes in applying this standard.

Smack relies on a series of federal cases where the court applied a preponderance of the evidence standard to establish facts warranting a sentence enhancement under the federal sentencing guidelines.  According to Smack, the same burden of proof should apply to the State when it argued for a harsher sentence based on Smack’s status as a drug kingpin.  The federal cases, however, are inapposite.  Under the federal sentencing guidelines, the judge must find facts at sentencing using evidentiary burdens because those factual determinations can cause an increase in the sentencing ranges under the guidelines.  Here, Smack’s guilty plea resulted in a sentencing range of two to seventy-six years. To fix the sentence within that statutory range, the judge was entitled to consider all facts that had a minimal indicia of reliability — including the intercepted text messages and phone conversations that led to the seventy-seven charges of drug dealing brought against Smack.  The court could and did find from these facts that Smack was more than a street-level drug dealer.

As hard-core sentencing fans know, the Supreme Court three decades ago in McMillan v. Pennsylvania, rejected a challenge to a Pennsylvania statute's use of a preponderance-of-the-evidence standard in the application of a mandatory minimum sentencing statute.  Chief Justice Rehnquist in that opinion explained why the Court had "little difficulty concluding that ... the preponderance standard satisfies due process."  Of course, aspects of McMillan were overturned in Alleyne v. US with respect to any fact-finding that formally alters any legal limit of a judge's sentencing discretion, but that decision itself stressed it was not contradicting "the broad discretion of judges to select a sentence within the range authorized by law."  

Through communications with the attorney representing in the defendant in this case, I have learned that a cert petition is in the works.  Given the remarkable reality that we have gone nearly 230 years into our constitutional history without having come close to settling just what due process means at sentencing, I think it would be great (and long overdue) for SCOTUS to take up a case like this.

December 10, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, December 09, 2017

"Portugal’s radical drugs policy is working. Why hasn’t the world copied it?"

1960The title of this post is the title of this lengthy recent Guardian article taking an in-depth look at how Portugal achieved and operationalizes its distinctive approach to drug use and abuse.  The extended article takes a deep dive into a lot of particular, but here are excerpts from the more general discussion:

In 2001, ... Portugal became the first country to decriminalise the possession and consumption of all illicit substances.  Rather than being arrested, those caught with a personal supply might be given a warning, a small fine, or told to appear before a local commission — a doctor, a lawyer and a social worker — about treatment, harm reduction, and the support services that were available to them.

The opioid crisis soon stabilised, and the ensuing years saw dramatic drops in problematic drug use, HIV and hepatitis infection rates, overdose deaths, drug-related crime and incarceration rates.  HIV infection plummeted from an all-time high in 2000 of 104.2 new cases per million to 4.2 cases per million in 2015.  The data behind these changes has been studied and cited as evidence by harm-reduction movements around the globe.  It’s misleading, however, to credit these positive results entirely to a change in law.

Portugal’s remarkable recovery, and the fact that it has held steady through several changes in government — including conservative leaders who would have preferred to return to the US-style war on drugs — could not have happened without an enormous cultural shift, and a change in how the country viewed drugs, addiction — and itself.  In many ways, the law was merely a reflection of transformations that were already happening in clinics, in pharmacies and around kitchen tables across the country.  The official policy of decriminalisation made it far easier for a broad range of services (health, psychiatry, employment, housing etc) that had been struggling to pool their resources and expertise, to work together more effectively to serve their communities....

In spite of Portugal’s tangible results, other countries have been reluctant to follow.  The Portuguese began seriously considering decriminalisation in 1998, immediately following the first UN General Assembly Special Session on the Global Drug Problem (UNgass).  High-level UNgass meetings are convened every 10 years to set drug policy for all member states, addressing trends in addiction, infection, money laundering, trafficking and cartel violence.  At the first session — for which the slogan was “A drug-free world: we can do it” — Latin American member states pressed for a radical rethinking of the war on drugs, but every effort to examine alternative models (such as decriminalisation) was blocked. By the time of the next session, in 2008, worldwide drug use and violence related to the drug trade had vastly increased.  An extraordinary session was held last year, but it was largely a disappointment — the outcome document didn’t mention “harm reduction” once.

Despite that letdown, 2016 produced a number of promising other developments: Chile and Australia opened their first medical cannabis clubs; following the lead of several others, four more US states introduced medical cannabis, and four more legalised recreational cannabis; Denmark opened the world’s largest drug consumption facility, and France opened its first; South Africa proposed legalising medical cannabis; Canada outlined a plan to legalise recreational cannabis nationally and to open more supervised injection sites; and Ghana announced it would decriminalise all personal drug use.

The biggest change in global attitudes and policy has been the momentum behind cannabis legalisation.  Local activists have pressed Goulão to take a stance on regulating cannabis and legalising its sale in Portugal; for years, he has responded that the time wasn’t right.  Legalising a single substance would call into question the foundation of Portugal’s drug and harm-reduction philosophy.  If the drugs aren’t the problem, if the problem is the relationship with drugs, if there’s no such thing as a hard or a soft drug, and if all illicit substances are to be treated equally, he argued, then shouldn’t all drugs be legalised and regulated?

Massive international cultural shifts in thinking about drugs and addiction are needed to make way for decriminalisation and legalisation globally.  In the US, the White House has remained reluctant to address what drug policy reform advocates have termed an “addiction to punishment”.  But if conservative, isolationist, Catholic Portugal could transform into a country where same-sex marriage and abortion are legal, and where drug use is decriminalised, a broader shift in attitudes seems possible elsewhere.  But, as the harm-reduction adage goes: one has to want the change in order to make it.

December 9, 2017 in Drug Offense Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (4)

Monday, December 04, 2017

USSC conducting public hearing on "Fentanyl, Fentanyl Analogues, and Synthetic Cannabinoids"

Tomorrow morning, as detailed in this agenda schedule, the US Sentencing Commission will be hearing from experts on an issue at the intersection of law enforcement, chemistry and public health.  Here are the basic details:

Public Hearing on Fentanyl, Fentanyl Analogues, and Synthetic Cannabinoids

Tuesday, December 5, 2017 at 9:00 a.m.

Pursuant to Rule 3.4 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Tuesday, December 5, 2017, at 9:00 a.m. (ET).  The public hearing will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC in Suite 2-500 (South Lobby).

The purpose of the public hearing is for the Commission to receive testimony from experts on fentanyl, fentanyl analogues, and synthetic cannabinoids, including their chemical structure, pharmacological effects, trafficking patterns, and community impact.

As of this writing, the written testimony of the 16 scheduled hearing witnesses are not yet posted.  But the USSC typically does a fine job of making testimony publicly available so I expect some will be accessible here before long.   I cannot help but wonder if Kellyanne Conway, whom some are calling the new "Opioid Czar" after comments by AG Jeff Sessions last week, might be at the hearing as part of her responsibilities coordinating and leading effort from the White House in this arena.

December 4, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, November 29, 2017

AG Sessions announces stepped up efforts to address opioid crisis

This new press release, titled "Attorney General Sessions and Acting DEA Administrator Patterson Announce New Tools to Address Opioid Crisis," reports on new developments from the Justice Department on the opioid front. Here are the basics from the start of the press release:

Joined by Acting DEA Administrator Robert Patterson, Attorney General Sessions announced the following efforts during a press conference at the Department of Justice: over $12 million in grant funding to assist law enforcement in combating illegal manufacturing and distribution of methamphetamine, heroin, and prescription opioids; the establishment of a new DEA Field Division in Louisville, Kentucky, which will include Kentucky, Tennessee, and West Virginia, a move meant to better align DEA enforcement efforts within the Appalachian mountain region; and a directive to all U.S. Attorneys to designate an Opioid Coordinator to work closely with prosecutors, and with other federal, state, tribal, and local law enforcement to coordinate and optimize federal opioid prosecutions in every district.

“Today we are facing the worst drug crisis in American history, with one American dying of a drug overdose every nine minutes,” said Attorney General Jeff Sessions. “That’s why, under President Trump’s strong leadership, the Department of Justice has been taking action to make our drug law enforcement efforts more effective. Today we announce three new initiatives to do just that. First, we will invest $12 million in funding for our state and local law enforcement partners to take heroin and methamphetamine off of our streets. Second, we will restructure DEA's Field Divisions for the first time in nearly 20 years. Third, we will require all of our federal prosecutors' offices to designate an Opioid Coordinator who will customize our anti-opioid strategy in every district in America. These steps will make our law enforcement efforts smarter and more effective—and ultimately they will save American lives."

“DEA continually looks for ways to improve operations and interagency cooperation and more efficiently leverage resources,” said Acting DEA Administrator Robert W. Patterson. “By creating a new division in the region, this restructuring places DEA in lockstep with our partners in the area to do just that. This change will produce more effective investigations on heroin, fentanyl, and prescription opioid trafficking, all of which have a significant impact on the region.”

The Attorney General's two-page memo to United States Attorneys can is available here, and the text of the speech he gave to discuss these developments is available here.  That speech concludes this way:

I believe that these changes will make law enforcement more effective — and make the American people safer.  But our work is not finished.  We will not slow down for one day or even for one instant.  With one American dying of a drug overdose every nine minutes, enforcing our drug laws is more important than ever.

We will not cede one city, one neighborhood, or one street corner to gangs, violence, or drugs.  We need to use every lawful tool we have — and we will.  This Department will continue to take whatever steps we deem appropriate and effective toward our goal of turning the tide.

I know that this crisis is daunting — the death rates are stunning — and it can be discouraging.  But we will turn the tide. When the men and women of law enforcement work effectively in a focused way, we can stop the growth of destructive addiction, keep the American people safe, and save lives.  Thank you.

November 29, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (7)

Monday, November 27, 2017

Ohio getting started on Justice Reinvestment 2.0 to confront latest criminal justice challenges

For more than a decade, the Council of State Governments Justice Center and the Justice Department and the Pew Public Safety Performance Project have worked on "Justice Reinvestment" projects in numerous states. These projects generally involve careful study of state and local criminal case processing in order to identify inefficient use of limited prison space and efforts to reduce prison admission and reinvest resulting savings to services that would achieve better public safety outcomes at a lower cost. Now, as this local article from Ohio highlights, it at least one state a second generation of this project is underway:

Amid a glut of nonviolent drug offenders and probation violators serving time in state prisons, Ohio again is taking a look at criminal-justice reform. The effort seeks to tweak the system and criminal sentencing to account for the impact of violent crime and opioid-fueled offenses “while enhancing public safety.”

The 24-member “Justice Reinvestment” committee also hopes to reduce recidivism while pursuing schemes to better route offenders to the right place, whether prison or local community control programs. Emphasis will “explicitly focus on what is happening before prison, or in other words, the system’s ‘front end,’ where many decisions are made that impact both future judicial and corrections practices,” said Michael Buenger, administrative director of the Ohio Supreme Court.

The committee, which includes [State corrections Director Gary] Mohr, [Union County Prosecutor David] Phillips, [Franklin County Common Pleas Court Judge Charles] Schneider and other judges, prosecutors, lawmakers and state and local officials, is scheduled to submit a report and recommendations to the General Assembly in the fall of 2018.

The group began its work this month with a report from the Council of State Governments Justice Center that laid out the scope of its challenge:

‒ Reflecting the opioid addiction crisis, drug-abuse arrests increased 12 percent in Ohio to more than 32,000 annually between 2011 and 2016. Only North Dakota and South Dakota saw a higher increase. A total of 5,609 drug offenders were committed to state prisons last year alone.

‒ Property crime decreased 23 percent between 2011 and 2016 but violent crime ticked up 6 percent over 2015 and 2016, mostly because of increases in Cleveland, Dayton and Toledo. “Low-level crimes drive arrest activity and limit law enforcement’s capacity to respond to violent crime.”

‒ Ohio has the nation’s third-highest rate of people on probation and parole, nearly 244,000 at the end of 2015. Offenders released and then sent back to prison for probation violations account for 23 percent of annual commitments to state prisons. “Ohio still lacks a coherent strategy for recidivism reduction.”

‒ The number of offenders in the $1.8 billion-a-year prison system grew by 9 percent between 2000 and 2016, with the population generally holding steady since 2007 around 50,000 to 51,000. Offenders, in general, also are serving longer stretches in prison. “Prison crowding and costs remain high.”

‒ Ohio’s criminal sentencing scheme “has contributed to crowded prisons and large misdemeanor and felony probation populations. ... Ohio law shows a micromanaged approach to sentencing policy that is needlessly complex.”

State prisons housed 8,300 offenders when Mohr joined the Ohio Department of Rehabilitation and Correction as a teacher’s aide in 1974. By the middle of last year, that number had increased six-fold to 51,014 prisoners (just a tad off the all-time high), who cost an average of $72 a day to house. “Think about the budget, the amount of investment, the reason why we’re still on this path,” Mohr said. “I think there are too many Ohioans incarcerated. It’s a much better investment to place nonviolent offenders in community programs. All evidence shows it’s twice as effective at one-third the cost.”

Mohr is encouraged by a community-alternative program in which the state is spending up to $58 million over two years to divert low-level, nonviolent felony offenders, many convicted of drug possession, from state prisons to local programs. Since the middle of last year, the prison population has dropped nearly 5 percent to 48,799. Forty-eight participating counties are using work-release, substance-abuse treatment, intensive supervision and other programs. Franklin and other large counties still are deciding whether to participate.

Mohr said the state should invest in the lives of low-level offenders “earlier in their lives” in local corrections programs to help address employment, behavioral health and substance-abuse issues before they lead to more serious offenses and state prison time. “All of the counties that have tried it loved it. Ohio is, in my mind, safer than it was before.”

Part of the group’s discussions should center on taking some low-level felonies, such as simple drug possession, that are contributing to prison packing and making them misdemeanors to be handled locally, and improved probation services, Mohr said.

Judge Schneider said that judges are chafing under some criminal sentencing guidelines. “Mandatory sentencing makes sense for crimes like murder and rapes, but some of the drug charges where it is mandatory is frustrating,” he said. Judges should be free to tailor sentences for lower-level offenses to match the offender and his crime “if you can articulate specific facts” whether a prison sentence is appropriate or not, he said.

“If you want us to treat certain (felony) offenses as misdemeanors, then make them misdemeanors. Quite frankly, the legislature doesn’t have the will to do that,” Schneider said, adding, for example, that the current fifth-degree felony threshold of $500 in a theft offense should be raised. Lawmakers, he said, are too fond of creating new offenses and tinkering with prison sentences.

The state’s current scheme also is “schizophrenic” about drug addicts, the judge said. “We say it’s not his fault, it’s a disease. But when that person breaks into a house to fund that disease, it becomes a serious crime. It’s the same person, folks,” Schneider said.

Union County’s Phillips said that, from the perspective of prosecutors, “our primary interest is public safety, No. 1, and holding offenders accountable, No. 2.” He differed from Mohr’s assertion that prison is not appropriate for some. “You should talk to victims of crime and see if they think that is true. Community control sanctions do not work for some people and they need to go to prison.”

At the Ohio Criminal Sentencing Commission's website, one can now find these background documents with more information concerning the state's reinvestment in justice reinvestment:

Ohio Justice Reinvestment Ad Hoc Committee Kicks off Review of Criminal Justice System

Justice Reinvestment in Ohio: Overview

Justice Reinvestment 2.0 in Ohio: Launch Presentation

November 27, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Sunday, November 26, 2017

Interesting Eighth Amendment attack waged against extreme application of Tennessee's "Drug Free School Zone" law

This recent post from the Supreme Court of Tennessee Blog reports on an interesting constitutional challenge to the severe mandatory sentence that goes with the application of Tennessee’s "Drug Free School Zone" law.  Here is an excerpt from the post by Daniel Horwitz (who happens to represent the defendant).  Links are from the original post:

groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.”  The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t....

The government’s informant had thirty-nine (39) separate convictions on his record in Davidson County alone at the time of the drug sales at issue—many of them violent felonies.  Even so, the informant was paid more than $1,000 in taxpayer money and avoided jailtime in exchange for helping secure Mr. Bryant’s conviction.  Mr. Bryant’s first trial ended in a hung jury after several jurors concluded that Mr. Bryant had been entrapped.  After his second trial, however, Mr. Bryant was convicted of selling drugs.

Even though it was a first-time, non-violent offense — Mr. Bryant had no other criminal history of any kind — because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

Given the extraordinary circumstances of his prosecution, Mr. Bryant has filed a novel constitutional challenge to the application of Tennessee’s intensely punitive Drug Free School Zone law to his case.  Notably, even the District Attorney who prosecuted Mr. Bryant has submitted an affidavit supporting his early release, stating that: “I fail to see how an additional six years of incarceration will improve Mr. Bryant’s amenability to correction or would be required to maintain public safety.  I additionally fail to see how his release at a time earlier than 2023 — and after over nine years of incarceration — will deprecate the seriousness of the offenses for which he was convicted or significantly imperil public safety.”

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours — especially when a government informant has set up a drug transaction inside a school zone on purpose....

Mr. Bryant’s petition paints a heartbreaking picture of a law that was never intended for cases like his but which applied to him anyway.  In Davidson County, he notes, so-called “drug free” zones “cover[] almost every habitable portion of Nashville and [nearly] all of its urban core.”  As a result, based solely on a prosecutor’s discretion, the law can be applied “to virtually every drug sale that takes place in Nashville.”  Even so, in the approximately two decades since the law was enacted, only 62 defendants have ever been punished with the school zone sentencing enhancement in Davidson County, which upgrades a defendant’s conviction by a full felony class and renders defendants ineligible for parole for decades.  Although, as a general matter, the law has been used sparingly to punish dangerous or repeat offenders, Mr. Bryant’s petition notes that he has “the dubious distinction of being the only defendant in the history of this jurisdiction to receive Tenn. Code Ann. § 39-17-432’s sentencing enhancement for a first-time offense.”...

Mr. Bryant notes that in the time since his conviction, Tenn. Code Ann. § 39-17-432 has been reformed both judicially and operationally to avoid precisely the type of strict liability penalty that applied in his case.  Consequently, if Mr. Bryant had committed the exact same offense today, then he would likely have been subject to a maximum sentence of between two and eight years in prison, rather than seventeen years.  Further, given his status as a first-time, non-violent offender, Mr. Bryant may well have avoided prison time at all.

Mr. Bryant has asked Davidson County Criminal Court Judge Steve Dozier to declare his sentence unconstitutional as applied to the unique circumstances of Mr. Bryant’s case, arguing that these circumstances render his sentence excessive under both the Eighth Amendment and Article 1, Section 16 of the Tennessee Constitution.  Mr. Bryant has also petitioned Judge Dozier for release while he submits an application for a pardon or commutation.  More than a dozen supporters — including Mr. Bryant’s own prosecutor, local politicians, business owners, friends, family members, and civil rights activists — have also filed affidavits in support of Mr. Bryant’s early release.  A hearing on Mr. Bryant’s petition is set for December 15, 2017 in Davidson County Criminal Court, Division 1.

November 26, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Tuesday, November 21, 2017

"Assessing and Responding to the Recent Homicide Rise in the United States"

The title of this post is the title of this notable new report coming from the National Institute of Justice and authored by Richard Rosenfeld, Shytierra Gaston, Howard Spivak and Seri Irazola.  Here is the full executive summary:

Big-city homicides rose in 2015 and again in 2016, although not all cities experienced a large increase, and homicides fell in some cities.  We consider two explanations of the homicide rise as guides for future research: (1) expansion in illicit drug markets brought about by the heroin and synthetic opioid epidemic and (2) widely referenced “Ferguson effects” resulting in de-policing, compromised police legitimacy, or both.

Larger increases in drug-related homicides than in other types of homicide provide preliminary evidence that expansions in illicit drug markets contributed to the overall homicide rise.  The current drug epidemic is disproportionately concentrated in the white population, and homicides have increased among whites as well as among African-Americans and Hispanics.  We surmise, therefore, that the drug epidemic may have had an especially strong influence on the rise in homicide rates among whites.

Current evidence that links de-policing to the homicide rise is mixed at best.  Surveys of police reveal widespread concerns about increased police-community tensions and reductions in proactive policing in the aftermath of widely publicized deadly encounters between the police and African-Americans.  Increases in homicide followed decreases in arrests in Baltimore and Chicago, although it is not known whether the same was true in other cities.  Nationwide, arrest-offense ratios and arrest clearance rates decreased in 2015, but they had been declining for several years when homicide rates were falling.  The extent of de-policing and its possible connection to the recent homicide rise remain open research questions.

Survey evidence reveals greater discontent with the police among African-Americans than among whites.  Alienation from the police can result in a decreased willingness to contact them when a crime occurs or to cooperate in police investigations and, some studies suggest, an increase in criminal behavior.  One study has shown that calls for police service fell after a controversial violent encounter between the police and an unarmed African-American in Milwaukee.  The reduction in calls for service was greater in African-American neighborhoods than in other neighborhoods.  The rate at which the police are contacted is only one of several indicators needed to measure any connection between diminished police legitimacy and the recent rise in homicides.

We emphasize the provisional nature of these hypotheses regarding the recent homicide rise.  We recommend using city- and neighborhood-level case studies to further refine the hypotheses and develop new ones, and quantitative studies of larger samples of cases should follow.  We discuss several key empirical indicators to measure changes in drug markets, policing, and police legitimacy and offer several suggestions for future research.  The National Institute of Justice (NIJ) will play an important role in facilitating the necessary research.

U.S. homicide rates rose substantially in 2015 and 2016.  These increases were much larger than was typical of yearly homicide fluctuations over the past several decades, so they merit close attention.  This paper extends a previous analysis (Rosenfeld 2016) by documenting the homicide rise in 2015 with more complete data and presenting data for large cities in 2016.  The paper then considers two explanations for the recent homicide increase.  The first explanation ties the increase to the expansion of illicit drug markets resulting from the heroin and synthetic opioid epidemic in the United States.  The second explanation is the widely referenced Ferguson effect on crime rates, which attributes the homicide increase to reduced proactive policing, community alienation from the police, or both (Mac Donald 2016; Rosenfeld 2016). The paper concludes with recommendations for future research on the recent homicide rise.

November 21, 2017 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (11)

Thursday, November 16, 2017

Notable crime fighting comments by Deputy AG Rosenstein in Chicago

Deputy Attorney General Rod Rosenstein delivered this lengthy speech at an awards dinner in Chicago on Thursday evening, and it included a number of interesting passages about crime fighting. I recommend the speech in full, and here are a few passages I thought especially worth highlighting:

In the first few decades after its creation in 1919, the Chicago Crime Commission battled bootleggers, gangs, and public corruption. It famously named Al Capone as Public Enemy Number One, which inspired the FBI to create its Ten Most Wanted List.

The challenges Chicago faces today demand a similar approach. In 2016, more than 4,300 Chicagoans were shot, and 760 were killed. On average, one person was shot every two hours, and two people were killed every day.  This year, with more than 600 homicides so far, Chicago is on track to report the second-highest murder total this century....

Gang violence accounts for the majority of the shootings and killings. Most of the violence relates to drug trafficking. Gang members do not just kill each other. T he also murder innocent bystanders -- men, women, and even children.

I mentioned earlier that I have a particular interest in a Chicago case from almost a century ago. It arose following the most notorious Chicago gang murder in history, known as the St. Valentine’s Day Massacre.  In 1929, seven victims were lined up against a wall and shot with machine guns.  The sensational crime shocked the city and provoked a public outcry to crack down on crime....

So Eliot Ness and his allies sent Capone to prison for a more readily provable crime -- tax evasion. Attorney General Robert Kennedy adopted a similar approach in 1961, when he counseled agents to fight organized crime with all available tools, even if it required prosecuting gangsters for minor offenses. In this century, after the attacks of September 11, 2001, Attorney General John Ashcroft ordered prosecutors to disrupt terrorist plots by pursuing any lawful charges to put suspects behind bars before they carry out their murderous plans.

The lesson of Ness, Kennedy and Ashcroft informs my approach to violent crime.  The lesson is that if we really want to save lives, we must have the courage to order our law enforcement agencies to employ proactive policing. To prevent crime, you need to identify killers and remove them from the community before they strike again.

I support education, job-training, rehabilitation, and other efforts to teach people not to commit crimes. But for police and prosecutors, our unique power is the ability to send people to prison.  The challenge is to focus on the right people and to make it count.  Local police agencies spend much of their time reacting to emergency calls and investigating past crimes, but they convict only a fraction of the perpetrators.

During my briefings with the leaders of the Chicago Police Department this morning, I learned that Chicago is now working to drive down violent crime through proactive policing.  We know that proactive policing works.  Proactive police and prosecutors identify violent repeat offenders, then they commit the resources needed to gather evidence of any readily prosecutable crimes.

Targeting dangerous repeat offenders for proactive enforcement is not a "zero tolerance" strategy of arresting random people for minor offenses.  It is a thoughtful strategy of identifying the career criminals and gangs that are fomenting violence in our communities, and using constitutional policing to arrest, prosecute and incarcerate them....

The lesson is that deterrence requires enforcement and rules that matter to criminals are the ones that carry expected penalties the criminals are unwilling to pay.  Deterrence is about fear of consequences. We want criminals to fear the police and the consequences of committing crimes.  If dangerous criminals are not afraid, then law-abiding citizens are in jeopardy.

When we see a surge in violent crime that follows a dramatic disruption in policing, as happened in Baltimore and Chicago, it is obvious that there is a lapse in the deterrent effect of law enforcement.  The debate about what caused the recent lapse in deterrence will endure, as will efforts to remedy root causes and improve relationships between police officers and residents of crime-ridden neighborhoods.

In the meantime, the crime surge can be suppressed if law enforcement agencies work together to secure lengthy sentences for armed felons, build proactive drug and conspiracy cases against members of gangs that foment violence, and prosecute dangerous offenders who violate probation or parole conditions.  I saw that approach work in Baltimore from 2007 to 2014. Both shootings and arrests fell dramatically.  It can work again....

Unfortunately, some people will not act good.  The national violent crime rate rose nearly seven percent over the past two years. The homicide rate increased more than 20 percent. Proactive policing can help reverse that trend....

The Attorney General also announced the creation of the National Public Safety Partnership to combat violent crime, and we hosted a National Summit on Crime Reduction and Public Safety.  The Attorney General established a new charging policy that authorizes prosecutors to charge defendants with the most serious offense.  It is not really a new policy; it is a return to the policy that worked when crime was falling....

We also are hiring additional federal prosecutors to focus on violent crime.  More police officers will patrol the streets with COPS hiring grants.  The Organized Crime and Drug Enforcement Task Forces helps implement a National Gang Strategy Initiative.  We offer training and technical assistance to state and local partners, and we collaborate with local law enforcement and exchange best practices.

There are many other things that we do to help reduce crime, but I want to conclude by talking about one of the most important.  We fight crime by promoting respect for the police. We need police to serve as role models.  Contacts with the police create indelible memories in the minds of citizens.  Police have a special responsibility to follow ethical and professional standards.  And citizens should show respect for law enforcement.  There is no excuse for people to harass law enforcement officers....

Chicago Police are still burdened by the requirement that they spend up to 45 minutes filling out a form every time they make a routine investigative stop. People who impose those requirements may be well-intentioned, but they usually fail to weigh the benefit of more bureaucracy against the cost of human lives lost to criminals who now are not stopped.

Fortunately, Superintendent Johnson’s police commanders are working to overcome their hurdles and give officers the tools and support they need to fight crime. Those tools include crime cameras, crime-mapping and predicting patrolling. I saw those tools demonstrated this morning at the Chicago Police Department’s Seventh District, where Commander Kenny Johnson and his crime analysts hold daily strategy meetings to decide where to assign patrol officers. They also run weekly shooting reviews attended by both state and federal prosecutors.

I also learned this morning that Chicago police data reports show that drug arrests lead to violent crime reductions. The most important single variable that reduces shootings in Chicago is to make a drug arrests. That is just a fact. As John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of the facts and evidence.”

It is good to see police leaders who are stubborn about facts.  Superintendent Johnson’s police officers do not mindlessly make mass drug arrests.  They arrest drug dealers who disrupt neighborhoods and foment violence.  They do exactly what Ness, Kennedy and Ashcroft did.

There are many notable aspects to this full speech, but I find especially interesting that the Deputy AG (1) references the St. Valentine’s Day Massacre without noting its link to alcohol Prohibition, (2) states that most of Chicago's violence relates to drug trafficking, and (3) asserts drug arrests lead to violent crime reductions.

November 16, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Could post-Harvey Houston justice be a national model rather than a natural disaster?

The question in the title of this post is prompted by this recent Houston Chronicle article headlined "Prosecutors, attorneys cut 'Harvey deals' in jail basement as flood-damaged courthouse is repaired."  The article reviews various ways the local Houston justice system has had to adjust to the disruptions caused by Hurricane Harvey, and this passage really caught my eye:

[Defense] lawyers said the crush of criminal cases has caused judges and prosecutors to evaluate their dockets with an eye toward getting rid of as many cases as possible. "If the case is something not so serious, you've got a chance at getting a 'Harvey deal,' " said one lawyer, who spoke on condition of anonymity. "But if it's serious, you get delays."

[District Attorney Kim] Ogg confirmed that in the wake of the storm, her top lieutenants reviewed about 600 low-level drug cases in a feverish bid to make plea deals. "We dismissed about 110 of those cases, and we pled about 200 others," Ogg said. "There were about 300 that we couldn't plead."

Ogg said her office sought to expedite state jail felony drug cases, which typically involve possession of small amounts of cocaine or other drugs. "I intend to continue to try to clear our table of cases that produce the least public safety benefit but suck the most resources," she said. "And those are low-level drug cases and those that involve the mentally ill."

Because of the varied disruptions caused by Hurricane Harvey, it likely would be very hard to confidently identify the precise impact of the dismissal and expedited processing of hundreds of low-level drug cases reported here by the DA.  But I genuinely believe it would be beneficial for every chief prosecutor in every jurisdiction, without awaiting a natural disaster, to "try to clear [the] table of cases that produce the least public safety benefit but suck the most resources."  If Houston's post-Harvey experiences prove positive, maybe DA Ogg can and will report on the potential case processing benefits that emerged from the necessities created by an unfortunate disaster.

November 16, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, November 13, 2017

Interesting reviews of accomplishments and challenges in dealing with drug cases in West Virginia

At a time when there is so much talk about reforming how the criminal justice deals with low-level drug offenders, I found both encouraging and depressing this recent local story reporting on recent developments in West Virginia.  The article is headlined "Drug offenses straining already overburdened jail system, prosecutor says," and here are excerpts:

With its jails and prisons already bursting at the seams, Kanawha County Prosecuting Attorney Chuck Miller figures West Virginia is either going to have to come up with another way of handling drug offenders or plan on building more correctional facilities.  Miller recently discussed the available alternative sentencing options with a legislative committee tasked with looking at problems facing the state’s correctional system, points out jails and prisons here are understaffed and overflowing, in large part because drug addiction and the crimes associated with it have spiraled out of control.

How bad is it? According to the Department of Military Affairs & Public Security, 43 percent of the offenders processed at one of the state’s regional jails last year had to go through a detoxification protocol due to substance abuse issues....

It’s not a new problem, either. State leaders long ago realized the prison population was outstripping available resources and in 2012 decided to carve out a data-driven strategy to address it — realizing that, left unchecked, they’d have to spend at least $200 million to build more prison cells plus another $70 million a year in operating costs.  Rather than build more prisons, West Virginia opted to increase its reliance on community-based resources, including drug courts and day report centers.

They’ve not been without success: More than 1,300 adults and juveniles have graduated from drug court, typically an 18-24 month program that helps low-risk offenders.  As of March 2016, West Virginia’s drug courts had graduated 857 and 506 juveniles, in each case just over half of those who’d been accepted in the program.  About 500 more were still active in the program.  According to the West Virginia Supreme Court:

• Recidivism rates for adults after one year was reported to be 1.88 percent, and after two years, 9.4 percent — much lower than the nearly 80 percent recidivism rate for drug offenders who’d been incarcerated. Recidivism for juvenile graduates was said to be 14.6 percent, compared to 55.1 percent for youths in traditional juvenile probation programs.

• Per participant adult drug court program costs — about $7,100 for adults and $6,900 for juveniles — was a fraction of the per diem for housing adult offenders in regional jail (more than $17,000 per year) or prison (more than $28,000 per year).  Likewise, the state said it spent $6,900 to rehabilitate its juvenile drug court alumni — a fraction of what it would have cost to keep them in a secure juvenile facility, a group home or a hospital treatment facility.

Day Report Centers also provide intensive supervision and individualized services, including counseling, to non-violent offenders in lieu of incarceration, helping parolees reintegrate into society and saving millions in jail costs.  Kanawha’s Day Report Center, for example, said its program had saved more than $3 million in jail costs in 2016.  Since its inception in 2005, KDRC has graduated nearly 1,000 clients and had a recidivism rate under 13 percent.

Also in West Virginia’s sentencing toolkit: Pre-trial diversion agreements which allow first-time offenders to avoid jail by obtaining counseling and other treatment, and home confinement, allowing offenders to serve their sentence at home with electronic supervision in lieu of incarceration.  Participants generally must stay within range of a landline telephone and are subject to random drug and alcohol testing....

The programs aren’t without their challenges, however. Pre-trial diversions, for instance, require offenders to undergo treatment, but “availability of detoxification treatment facilities is sparce,” Miller notes.  Likewise, home confinement requires a home and a landline phone.

But, with an opiate epidemic showing no sign of slowing, he said West Virginia is going to have to find answers — even if means building a secure facility dedicated to treating offenders with drug dependencies, one they couldn’t walk away from, or expanding traditional jails and prisons.

“If we have a facility devoted to drug treatment, maybe we’d decrease crowding in our jails and increase our success with people,” Miller said, adding, “We’re not going to prosecute our way out of it and every solution ... requires money.”

November 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, November 08, 2017

"An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

Logo (1)The title of this post is the title of this big new report from the Drug Policy Alliance. Here is part of its extended executive summary:

The country is in the middle of a tragic increase in drug overdose deaths. Countless lives have been lost – each one leaving an irreparable rift in the hearts and lives of their families and friends. These tragedies are best honored by implementing evidence-based solutions that help individuals, families, and communities heal and that prevent additional avoidable deaths. This report examines one strategy that the evidence suggests is intensifying, rather than helping, the problem and calls for leaders to turn towards proven measures to address the increasing rates of overdose deaths.

In the 1980s, at the height of the draconian war on drugs, the federal government and a host of states passed “drug-induced homicide” laws intended to punish people who sold drugs that led to accidental overdose deaths with sentences equivalent to those for manslaughter and murder. For the first 15-20 years, these laws were rarely used by police or prosecutors, but steadily increasing rates of drug overdose deaths across the country have led the law enforcement community to revive them. Currently, 20 states — Delaware, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming —  have drug-induced homicide laws on the books.

A number of other states, while without specific drug-induced homicide statutes, still charge the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws. These laws and prosecutions have proliferated despite the absence of any evidence of their effectiveness in reducing drug use or sales or preventing overdose deaths. In fact, as this report illustrates, these efforts exacerbate the very problem they seek to remediate by discouraging people who use drugs from seeking help and assistance.

Although data are unavailable on the number of people being prosecuted under these laws, media mentions of drug-induced homicide prosecutions have increased substantially over the last six years. In 2011, there were 363 news articles about individuals being charged with or prosecuted for drug-induced homicide, increasing over 300% to 1,178 in 2016.

Based on press mentions, use of drug-induced homicide laws varies widely from state to state. Since 2011, midwestern states Wisconsin, Ohio, Illinois, and Minnesota have been the most aggressive in prosecuting drug-induced homicides, with northeastern states Pennsylvania, New Jersey, and New York and southern states Louisiana, North Carolina, and Tennessee rapidly expanding their use of these laws. Further signaling a return to failed drug war tactics, in 2017 alone, elected officials in at least 13 states – Connecticut, Idaho, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Ohio, South Carolina, Tennessee, Virginia, and West Virginia – introduced bills to create new drug-induced homicide offenses or strengthen existing drug-induced homicide laws.

Prosecutors and legislators who champion renewed drug-induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases. As just one example, despite ten full-time police officers investigating 53 potential drug-induced homicide cases in Hamilton County, Ohio in 2015, the county still recorded 100 more opioid-related overdose deaths in 2016 than in 2015.

This should be unsurprising. Though the stated rationale of prosecutors and legislators throughout the country is that harsh penalties like those associated with drug-induced homicide laws will deter drug selling, and, as a result, will reduce drug use and related harms like overdose, we have heard this story before. Drug war proponents have been repeating the deterrence mantra for over 40 years, and yet drugs are cheaper, stronger, and more widely available than at any other time in US history. Supply follows demand, so the supply chain for illegal substances is not eliminated because a single seller is incarcerated, whether for drug-induced homicide or otherwise. Rather, the only effect of imprisoning a drug seller is to open the market for another one. Research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.

Unfortunately, the only behavior that is deterred by drug-induced homicide prosecutions is the seeking of life-saving medical assistance. Increasing, and wholly preventable, overdose fatalities are an expected by-product of drug-induced homicide law enforcement. The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement. Recognizing this barrier, 40 states and the District of Columbia have passed “911 Good Samaritan” laws, which provide, in varying degrees, limited criminal immunity for drug-related offenses for those who seek medical assistance for an overdose victim. This public health approach to problematic drug use, however, is rendered useless by enforcement of drug-induced homicide laws.

November 8, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, November 04, 2017

Some more diverse reading about the opioid crisis

As I have said in prior posts, I could readily fill this blog multiple times a day with tales of the opioid crisis given the size and reach of the problem and the attention it is getting from many quarters.  Catching my attention this week are these opioid stories and commentaries, some which respond to the recommendations that emerged from Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis (discussed here):

November 4, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, November 02, 2017

Opioid Crisis Commission advocates expanded federal drug court programs and lots of other (mostly public health) stuff

Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis issued this big final report yesterday, and the heart of the report's themes and recommendations are usefully summarized in this extended letter to Prez Trump penned by Commission Chair Chris Christie.  This article in The Hill, headlined "Trump opioid commission backs more drug courts, media blitz," provides this even tighter summary, including the one recommendation that may be of focused interest and concern for sentencing fans:

President Trump’s opioid commission laid out 56 recommendations for how the nation should combat the epidemic, including drug courts and a national media campaign, days after the crisis was declared a national public health emergency.  Members voted to approve the report, which was due Nov. 1, at the end of a meeting on Wednesday.

The commission didn’t weigh in on the specific amount of money needed to combat the health crisis. President Trump's declaration of a public health emergency, which doesn't free up millions of dollars in extra cash, sparked calls for more funding by Democrats and advocacy groups.  But the report calls on Congress to determine the funding required....

Advocacy groups argue a robust infusion of federal dollars is needed to combat the epidemic of prescription painkiller and heroin overdose deaths plaguing the nation. Without more money, they say, the emergency declaration won’t make a significant dent in the crisis. The public health emergency fund doesn’t have much left — about $57,000. New Jersey Gov. Chris Christie (R), who helms the commission, predicted Trump will initially ask “for billions of dollars to deal with this.”...

Here are some of the commission’s recommendations:

— A coordinated system: The Office of National Drug Control Policy (ONDCP) should create a system to track all federally funded initiatives and invest only in effective programs. “We are operating blindly today; ONDCP must establish a system of tracking and accountability,” the report notes.

— A media campaign: The White House should fund and collaborate on a multiplatform media campaign, and the commission noted a similar one occurred during the AIDS public health crisis. It should address “the hazards of substance use, the danger of opioids, and stigma.”

– Opioid prescribing: The Department of Health and Human Services should develop a “national curriculum and standard of care” on prescribing prescription painkillers. It should supplement previous guidelines from the Centers for Disease Control and Prevention.

— Improve prescription drug monitoring programs. The Department of Justice should fund and create a hub to share data on prescribing and dispensing.

— Fentanyl: The commission wants to enhance sentencing for trafficking of this potent synthetic opioid.

November 2, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)