Friday, July 21, 2017

"Should California drop criminal penalties for drug possession?"

The question in the title of this post is the headline of this effective new opinion piece in the San Francisco Chronicle authored by Beau Kilmer and Robert MacCoun. Here are excerpts:

For better or worse, California likes to decide drug policy at the ballot box.  Voters have already approved marijuana legalization, but criminal sanctions against users of heroin, cocaine and other drugs are very much intact, though they’ve been moving in a more lenient direction.  It would not be surprising to see a proposition entirely eliminating criminal penalties for drug possession in the near future.

The removal of criminal penalties for drug possession — which is very different from allowing legal sales — is not a new idea. It has been implemented in other countries, and a joint statement from the United Nations and World Health Organization last month recommended the review and repeal of “laws that criminalize or otherwise prohibit … drug use or possession of drugs for personal use.”

California already moved in this direction in 2014 when voters approved Proposition 47, which reduced to a misdemeanor the possession of heroin, methamphetamine and other drugs. Possession of these drugs, however, is still a criminal offense.

Possession arrests and convictions can have devastating effects on users and their families — especially for young men of color, who are disproportionately targeted, and for immigrants, who can be deported for a criminal offense.  There are a number of additional sanctions associated with drug convictions; for example, they can make it harder to receive federal aid for college, or access public housing.  The stigma around criminalization can also make it harder for users to get help or discuss their problems with family members and health professionals.

On the other side, there are two main arguments for criminalizing possession.  First, there’s deterrence, with the goal of discouraging use by threatening users with sanctions. Second, there’s leverage — that is, using arrest and prosecution to steer those with substance-use disorders toward treatment....

We think that a constructive new debate about decriminalizing drug possession can start with three observations:

Decriminalizing drug possession and use does not give users a free pass to commit other crimes.  If substance use leads individuals to drive impaired or engage in violence, they should be punished for those offenses.  Jurisdictions could consider “bundling” decriminalization with innovative treatment and/or sanctioning regimes for those whose use leads them to commit crimes that threaten public safety.

Eliminating criminal penalties needn’t mean eliminating all sanctions on use. Many jurisdictions outside California punish cannabis possession with civil fines, and the same could be done for other drugs.  (A failure to pay the fine could still be punishable by jail time.)  Many citizens will be subjected to drug testing at work. And the informal social sanctions of stigma and shame will continue to play an important role, as we see with tobacco smoking and heavy alcohol use.

Decriminalizing possession does not have to be permanent. Risk-averse decision makers could adopt a sunset provision that automatically reimposes criminal penalties after a fixed amount of time unless the Legislature acts to extend the change in policy.

Californians have a lot to consider when it comes to decriminalizing possession, especially because we are still learning about the consequences of Prop. 47.  But now is the time for a rigorous discussion about removing criminal penalties for drug possession, rather than rushing to judgment in the heat of a future election season.

July 21, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, July 18, 2017

Should the US fight the war on drugs by actually fighting an actual war with Mexico?

The perhpas remarkable question in the title of this post is prompted by this remarkable commentary in US News authored by Matt A. Mayer, who is the CEO of Opportunity Ohio and a former senior official at the US Department of Homeland Security. The piece is headlined "To Solve the Opioid Crisis, Go to War," and here are excerpts:

Experts estimate that as many as 500,000 Americans could die from opioids over the next 10 years. Nearly all of the heroin and fentanyl hitting our streets is coming from Mexico, across the porous southern border. Mexico is also becoming, in some parts of the country, the main supplier of methamphetamine to the U.S., with overdose death rates increasing as the supply has surged.

We will spend tens of billions of dollars on addiction treatment, overdose responses, law enforcement activities, criminal justice processes and the ancillary costs associated with caring for the children of those who die from overdoses. Regardless of how much we spend, if we cannot substantially reduce or stop the flow of opioids and other death drugs across our southern border (and to a lesser extent through our mail system via China), we will continue to see tens of thousands of Americans die each year due to opioid and meth overdoses, with enormous damage to their families and communities....

To slow or stop the flow of opioids and other death drugs into our communities, we must secure the border with Mexico and methodically dismantle the distribution networks that the cartels have established in cities in all 50 states. The cartels are adaptive entities that will alter their strategy and tactics to counter each border and interior enforcement action we take to shut them down in the United States. Though the Mexican government makes some efforts to help with the cartels, corruption within the Mexican government and law enforcement is rampant. We simply can't rely upon the Mexican government for the kind of actions needed to crush the cartels.

This unfortunate reality raises a very uncomfortable question: Do we need to go to war with Mexico to ultimately win the war against opioids and other death drugs? By "go to war," I mean a formal declaration of war by Congress against Mexico in which we use the full force of our military might to destroy the cartels, the poppy fields and all elements of the drug trade. Ideally, as our fight is not with the Mexican government, its military or its people, which try to weaken the cartels, we would try to partner with those entities against the cartels, much as we partnered with the South Vietnamese government and military against the Vietcong and the North Vietnamese Army.

It sounds crazy, I know – unless you acknowledge we are already fighting a war with Mexico.

Short of such an all-out military effort, has anyone offered a realistic way to defeat the drug cartels and stop the flow of death drugs? Crushing the supply of opioids and other death drugs from Mexico will allow our treatment activities to gain ground against the epidemic and one day get ahead of it. If inexpensive heroin laced with fentanyl, or carfentanil, continues to be easily accessible in our communities, the wave of the opioid epidemic will simply continue to build. We must do something to force the wave to crest and to crash.

Let me put this issue in perspective. Since the first al-Qaida terrorist attack in Yemen in 1992, fewer than 5,000 Americans have died in terrorist attacks, with many of the deaths occurring on Sept. 11, 2001. In response to terrorist attacks, we waged wars in Afghanistan and Iraq, and spent hundreds of billions of dollars on external and internal security measures to detect and to prevent future attacks.

If we did all of that in response to radical Islamic terrorism, why is it so crazy to consider using our military power to defeat the Mexican drug cartels which have inflicted far more death, mayhem and costs on America than al-Qaida and the Islamic State group combined? Unlike terrorists living in far-off places, halfway around the globe, the Mexican drug cartels are operating right next door and within our communities, pushing enormous amounts of heroin, meth and other death drugs across the southern border and into the veins of our communities.

War with Mexico may sound crazy, but allowing militarized drug cartels to run drug production facilities aimed at supplying opioids and other death drugs to Americans within 1,000 miles of our southern border is even crazier, especially as the death count hits 50,000 people per year. We can continue to fight this war for decades with walls and arrests, or we can win this war in years with aircraft carriers, jets, bombs and the United States Marines.

Imagine how many lives we can save of those 500,000 Americans predicted to die because of Mexican opioids and meth. War with Mexico doesn't sound so crazy anymore, does it? 

July 18, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, July 17, 2017

In latest speech, AG Sessions advocates for more gun and prescription drug prosecutions and more asset forfeiture

Attorney General Sessions gave another notable speech today, and this one was delivered to the National District Attorneys Association.  Regular readers are familiar with the themes AG Sessions has been stressing of late, but these excerpts highlight what struck me as some new parts to what the AG is talking up:

We have a multi-front battle in front of us right now: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, and human traffickers, combined with a culture in which family and discipline seems to be eroding further.

From the early 1990s until just a few years ago, the crime rate steadily came down across the country. But violent crime is rising.  The murder rate, for example, has surged nearly 11 percent nationwide in just one year — the largest increase since 1968.  Per capita homicide rates are up in 27 of our 35 largest cities....

These numbers are deeply troubling — and especially since they represent a sharp reversal of decades of progress. My best judgment is that this rise is not an aberration or a blip.  We must take these developments seriously and consider carefully what can be done about them.  Yielding to the trend is not an option for America and certainly not to us....

We must encourage proven police techniques like community-based, proactive policing and “broken windows” — policies that are lawful and proven to work. Better training, better morale, professional excellence are goals of yours. My goal is to help you be effective and never to make your work more difficult. I am asking our U.S. Attorneys to be leaders in this approach. In the long run, there is nothing we can do that is more impactful....

I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.

Next, the DEA reports that 80 percent of heroin addicts started with abuse of prescription drugs. As you know, more than 50,000 died of drug overdoses in 2015. Preliminary numbers indicate 2016 may hit 60,000. We have never seen numbers like this. This nation is prescribing and consuming far too many painkillers. This must end.

Last week, we announced the indictments of over 400 defendants as part of the annual Health Care Fraud Take Down. 120 of those involved opioid-related drug fraud and nearly 50 were doctors. Some of these frauds involved massive amounts of drugs. But I’m convinced this is a winnable war. We can significantly reduce this abuse, which includes the big drug companies as well.

DEA is making these cases a priority. They can make visits to physician and pharmacies and do checks on those who prescribe or sell these drugs. They are reviewing and identifying physician and pharmacy outliers that can help you narrow the search for crooks.

I would urge you to examine every case that involves an arrest of an individual illegally possessing prescription drugs. Make a condition of any plea bargain that the defendant tell where he or she got the drugs. Together, let’s get after these bad actors....

In addition, we hope to issue this week a new directive on asset forfeiture — especially for drug traffickers.  With care and professionalism, we plan to develop policies to increase forfeitures.  No criminal should be allowed to keep the proceeds of their crime.  Adoptive forfeitures are appropriate as is sharing with our partners....

As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact. With every conviction we secure, we make our communities safer.

July 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, July 16, 2017

DAG Rosenstein makes the case for his boss's new charging and sentencing directive to federal prosecutors

Deputy Attorney General Rod Rosenstein authored this notable op-ed appearing in the San Francisco Chronicle to explain and justify Attorney General Sessions' new memo to federal prosecutors concerning charging and  sentencing.  The piece was given the headline "Attorney General Jeff Sessions is serious about reducing crime," and here is its full text:

U.S. Attorney General Jeff Sessions recently revised the federal criminal charging policy. When federal prosecutors exercise their discretion to prosecute a case, they generally “should charge and pursue the most serious, readily provable offense” established by the evidence, he wrote in a May 10 memo. Prosecutors must use “good judgment” in determining “whether an exception may be justified” by the particular facts of the case. The Sessions memo reinstitutes a policy that existed for more than three decades. It was first implemented by President Jimmy Carter’s attorney general, Benjamin Civiletti.

From 2013 to 2017, however, the U.S. Department of Justice protected some criminals from mandatory minimum sentence laws enacted by Congress. During that time, unless cases satisfied criteria set by the attorney general, prosecutors were required to understate the quantity of drugs distributed by dealers and refrain from seeking sentence enhancements for repeat offenders. Beneficiaries of that policy were not obligated to accept responsibility or cooperate with authorities.

After that policy was adopted, the total number of drug dealers charged annually by federal prosecutors fell from nearly 30,000 — where it had stood for many years — to just 22,000. Meanwhile, drug-related violence has surged. There has been a significant spike in murders, including an 11 percent increase in 2015 alone.

Drug overdose deaths also have accelerated at a frightening and unprecedented pace. The annual toll of Americans killed by drug overdoses stood near 36,450 in 2008, with some 20,000 overdose deaths involving prescription drugs, according to the Centers for Disease Control and Prevention. Estimates show that the 2016 total was on the order of 60,000, making drug overdose the leading cause of death of Americans under age 50.

Officials in many cities are calling on federal prosecutors for help, and tough sentences are one of federal law enforcement’s most important tools. Used wisely, federal charges with stiff penalties enable U.S. attorneys to secure the cooperation of gang members, remove repeat offenders from the community and deter other criminals from taking their places.

In order to dismantle drug gangs that foment violence, federal authorities often pursue readily provable charges of drug distribution and conspiracy that carry stiff penalties. Lengthy sentences also yield collateral benefits. Many drug defendants have information about other criminals responsible for shootings and killings. The prospect of a substantial sentence reduction persuades many criminals to disregard the “no snitching” culture and help police catch other violent offenders.

Minor drug offenders rarely face federal prosecution, and offenders without serious criminal records usually can avoid mandatory penalties by truthfully identifying their co-conspirators. The Sessions policy is serious about crime. It does not aim to fill prisons with low-level drug offenders. It empowers prosecutors to help save lives.

Prior recent related posts: 

July 16, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, July 13, 2017

Still more from AG Sessions on crime and punishment... and some critical commentary thereon

This recent post reprinted some excerpts of a speech by Attorney General Sessions at the 30th DARE Training Conference, and AG Sessions hit some similar points in this subsequent speech yesterday in Las Vegas to law enforcement personnel. This Vegas speech gave special attention to immigration enforcement and "sanctuary cities," and here are excerpts from the start of the speech that help highlight how AG Sessions view a tough approach to law enforcement as central to everything that government seeks to achieve: 

Since the early 1990s, the crime rate has steadily come down across the country — that is, until two years ago. Now, violent crime is once again on the rise in many parts of America.  The murder rate, for example, has surged 10 percent nationwide in just one year — the largest increase since 1968.

These numbers are shocking, and they are informative, but the numbers are not what is most important. What’s most important are the people behind the numbers.  Each one of the victims of these crimes had a family, friends, and neighbors. They’re all suffering, too....

We cannot accept this status quo, and this Department of Justice will not accept it.  Every American has the right to be safe in their homes and in their neighborhoods.

The first and most important job of this government — and any government — is to protect the safety and the rights of its people.  If we fail at this task, then every other government initiative ceases to be important.

As law enforcement officials, we have the responsibility to stop — and reverse — the surge in violent crime and opioids that has taken place over the last two years.  And under President Trump’s leadership, this Department of Justice will answer the call and do its part.

To that end, I have directed our federal prosecutors to work closely with our law enforcement partners at the federal, state, local, and tribal levels to combat violent crime and take violent criminals off our streets.

As we all know, the vast majority of people just want to obey the law and live their lives.  A disproportionate amount of crime is committed by a small group of criminals.  And the more of them we apprehend, prosecute, and convict, the more crime we can deter.

Meanwhile, as AG Sessions has been this week expounding his vision for federal criminal enforcement, some commentators concerned about his vision have been explaining their concerns.  Here are two recent pieces with critical commentary on what AG Sessions is up to:

July 13, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, July 11, 2017

Latest comments by AG Sessions on drug problems and federal prosecutorial policies

Attorney General Jeff Sessions spoke today at the 30th DARE Training Conference, and the setting not surprisingly prompted him to talk about drug issues and federal prosecutorial policies. His official remarks are available at this link, and here are excerpts:

Drug abuse has become an epidemic in this country today, taking an unprecedented number of American lives.  For Americans under the age of 50, drug overdoses are now the leading cause of death. In 2015, more than 52,000 Americans lost their lives to drug overdoses — 1,000 every week.  More died of drug overdoses in 2015 than died from car crashes or died at the height of the AIDS epidemic.

And the numbers we have for 2016 show another increase — a big increase. Based on preliminary data, nearly 60,000 Americans lost their lives to drug overdoses last year.  That will be the highest drug death toll and the fastest increase in the death toll in American history.  And every day, more than 5,000 Americans abuse painkillers for the first time.

This epidemic is only growing.  It’s only getting worse.  It’s being driven primarily by opioids — prescription drugs, heroin, and synthetic drugs like fentanyl.  Last year, there were 1.3 million hospital visits in the United States because of these drugs.  According to the Centers for Disease Control and Prevention, heroin use has doubled in the last decade among young people 18 to 25....

Now, this is not this country’s first drug abuse crisis.  In the 1980s, when I was a federal prosecutor, we confronted skyrocketing drug abuse rates across the country and we were successful.  In 1980, half of our high school seniors admitted they had used an illegal drug sometime in that year.  But through enforcing our laws and by developing effective prevention strategies, we steadily brought those rates down.

We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles.  I believe that DARE was instrumental to our success by educating children on the dangers of drug use.  I firmly believe that you have saved lives. And I want to say thank you for that.  Whenever I ask adults around age 30 about prevention, they always mention the DARE program.  Your efforts work.  Lives and futures are saved.

Now, some people today say that the solution to the problem of drug abuse is to be more accepting of the problem of drug abuse.  They say marijuana use can prevent addiction.  They say the answer is only treatment.  They say don’t talk about enforcement.  To me, that just doesn’t make any sense.  In fact, I would argue that one reason that we are in such a crisis right now is that we have subscribed to this mistaken idea that drug abuse is no big deal.

Ignoring the problem — or the seriousness of the problem — won’t make it go away.  Prevention — through educating people about the danger of drugs — is ultimately how we’re going to end the drug epidemic for the long term. Treatment is important, but treatment often comes too late.  By then, people have already suffered from the effects of drugs.  Then their struggle to overcome addiction can be a long process — and it can fail.  I have seen families spend all their savings and retirement money on treatment programs for their children — just to see these programs fail.

Now, law enforcement is prevention.  And at the Department of Justice, we are working keep drugs out of our country to reduce availability, to drive up its price, and to reduce its purity and addictiveness.  We know drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.  There is no doubt that violence tends to rise with increased drug dealing.

Under the previous administration, the Department of Justice told federal prosecutors not to include in charging documents the full amount of drugs being dealt when the actual amount would trigger a mandatory minimum sentence.  Prosecutors were required to leave out true facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb “mass incarceration” of “low-level offenders”, but in reality it covered offenders apprehended with large quantities of dangerous drugs.

What was the result?  It was exactly what you would think: sentences went down and crime went up.  Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016.  Violent crime — which had been decreasing for two decades — suddenly went up again.  Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

In May, after study and discussion with criminal justice experts, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that said we were going to trust our prosecutors again and allow them to honestly charge offenses as Congress intended.  This simple two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case, and allows them to exercise discretion where a strict application of the law would result in an injustice.  Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate.  That is the way good law enforcement has always worked.

But you know it’s not our privileged communities that suffer the most from crime and violence.  Minority communities are disproportionately impacted by violent drug trafficking and addiction.  Poor neighborhoods are too often ignored in these conversations.

Regardless of their level of wealth or their race, every American has the right to live in a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American community is ravaged by crime and violence at the hands of drug traffickers.  We can never yield sovereignty over a single neighborhood, city block, or street corner to drug traffickers....

Experience has shown, sadly, that it is not enough that dangerous drugs are illegal.  We also have to make them unacceptable.  We have to create a cultural climate that is hostile to drug abuse. In recent years, government officials were sending mixed messages about drugs.  We need to send a clear message.  We must have Drug Abuse Resistance Education.  DARE is the best remembered anti-drug program. I am proud of your work.  It has played a key role in saving thousands of lives and futures.

So please — continue to let your voices be heard.  I promise you that I will let my voice be heard.  Our young people must understand that drugs are dangerous; that drugs will destroy their lives, or worse yet, end them.  Let’s get the truth out there and prevent new addictions and new tragedies — and make all of our communities safer.  Thank you.

July 11, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, July 10, 2017

Drug Policy Alliance issues big new report calling for drug decriminalization

Download (2)This new press release reports on the latest call by the Drug Policy Alliance (DPA) for drug decriminalization in the US.  The DPA has this new report titled "It's Time for the U.S. to Decriminalize Drug Use and Possession," and the press release discusses its work with other organization to push this agenda forward.  Here is start and end of the DPA report's executive summary:

By any measure and every metric, the U.S. war on drugs — a constellation of laws and policies that seeks to prevent and control the use and sale of drugs primarily through punishment and coercion – has been a colossal failure with tragic results. Indeed, federal and state policies that are designed to be “tough” on people who use and sell drugs have helped over-fill our jails and prisons, permanently branded millions of people as “criminals”, and exacerbated drug-related death, disease and suffering — all while failing at their stated goal of reducing problematic drug use.

This report offers a roadmap for how to begin to unwind our failed drug war. It focuses on one practical step that can and should be taken to avoid many of the harms that flow from punitive prohibitionist drug laws and to promote proven, effective health-based interventions.

Drug decriminalization is a critical next step toward achieving a rational drug policy that puts science and public health before punishment and incarceration.  Decades of evidence has clearly demonstrated that decriminalization is a sensible path forward that would reap vast human and fiscal benefits, while protecting families and communities.

Drug decriminalization is defined here as the elimination of criminal penalties for drug use and possession, as well as the elimination of criminal penalties for the possession of equipment used for the purpose of introducing drugs into the human body, such as syringes.  Throughout this report, we will use the phrase “drug possession” to include drug possession, drug use, and possession of paraphernalia used for the purpose of introducing drugs into the human body.

Ideally, drug decriminalization entails the elimination of all punitive, abstinence-based, coercive approaches to drug use; however, for purposes of this report, the term encompasses a spectrum of efforts to eliminate criminal penalties, even if such efforts do not eliminate all forms of coercion entirely.  Drug decriminalization also ideally entails the removal of criminal penalties for low-level sales, given that the line between seller and user is often blurred (this subject and the broader issue of people who sell drugs will be addressed in a subsequent DPA report).

This report is the product of a comprehensive review of the public health and criminology literature, an analysis of drug policies in the U.S. and abroad, and input from experts in the fields of drug policy and criminal justice.  By highlighting the benefits of eliminating criminal penalties for drug use and possession, we seek to provide policymakers, community leaders and advocates with evidence-based options for a new approach....

This report makes the following recommendations for local, state and federal policymakers in the U.S.:

• Congress and U.S. states should eliminate federal and state criminal penalties and collateral sanctions for drug use, drug possession for personal use, and possession of paraphernalia intended for consuming drugs.

• Congress should amend federal law to de-schedule marijuana and remove it from the federal Controlled Substances Act.

• Administrative penalties – such as civil asset forfeiture, administrative detention, driver’s license suspension (absent impairment), excessive fines, and parental termination or child welfare interventions (absent harm to children) – run counter to the intent of a decriminalization policy and should not be imposed.

• Decriminalization policies — like other drug policies — generally function far more effectively when accompanied by robust and diverse harm reduction and treatment-on-demand programs, including medication-assisted treatment.

• Local and state governments should adopt pre-booking diversion and 911 Good Samaritan policies to prioritize public health over punishment and incarceration.

July 10, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Wednesday, July 05, 2017

"How smart was Obama's 'Smart on Crime' initiative? Not very"

The title of this post is the headline of this new Fox News commentary authored by Lawrence Leiser (president of the National Association of Assistant United States Attorneys), Nathan Catura (president of the Federal Law Enforcement Officers Association), Bob Bushman (president of the National Narcotics Officers’ Associations’ Coalition), Al Regnery (chairman of the Law Enforcement Action Network), and Ron Hosko (president of the Law Enforcement Legal Defense Fund). The piece largely serves as a defense of the new Sessions charging/sentencing policies, and here is the bulk of what this impressive quintet have to say:

Department of Justice policies since the 1980s directed federal prosecutors to charge the most serious readily provable offense, unless justice required otherwise.  It’s undisputed that this charging practice, applied over the course of several Republican and Democratic administrations in recent decades, contributed to the reduction of violent crime by half between 1991 and 2014.

The Obama administration’s “Smart on Crime” initiative — touted by former Deputy Attorney General Sally Yates in a recent oped in the Washington Post titled “Making America scared again won’t make us safer” — undermined those hard-fought gains in public safety, and ushered in significant increases in violent crime.  In 2015, violent crime rose 5.6 percent — the greatest increase since 1991 — and included a shocking 10.8 percent increase in homicide rates.  And, although the final numbers for 2016 have not been published, the preliminary data suggests another substantial increase in the violent crime rate.

Among the policies championed by then Attorney General Eric Holder and Deputy Attorney General Yates was one that reversed long-standing charging policies and directed federal prosecutors to avoid minimum sentences against drug traffickers, as mandated by Congress, and instead pursue lesser charges.  Despite the well-known and deadly violence associated with drug cartels, gangs and their networks, the Holder-Yates policies directed federal prosecutors in certain cases to under-charge drug trafficking cases and avoid triggering statutory minimum penalties by not pressing charges on the actual amount of drugs that traffickers distributed, such as heroin, crack cocaine, and methamphetamine.

Changes in federal law enforcement policy can ripple through communities across the country and affect their safety.  “Smart on Crime” was part of a larger policy shift within the Obama administration from drug abstinence and accountability to drug acceptance and victimization.  Since its inception, correlative increases in drug abuse, overdose deaths and violent crime have had a devastating impact on every community, regardless of sex or demographics.  The reduced charging and sentencing of thousands of drug traffickers and their early release from prison — all hallmarks of the Holder-Yates policies of the Obama years — have begun to leave their devastating mark downstream on the safety of communities across the nation.  The surge in violent crime should not be surprising.  Drug trafficking by its very nature, is a violent crime.

Take the recent account of Michael Bell, a former federally-convicted methamphetamine dealer who, when facing new state charges in Tennessee for kidnapping and domestic assault, shot two sheriff’s deputies during a court proceeding.  Bell would have still been in federal prison had he not been released in 2015, three years earlier than scheduled, because of the across-the-board sentencing reductions prior administration leaders pushed the U.S. Sentencing Commission to impose.

Not surprisingly, those former officials continue to use the term “low level, non-violent offender” to promote a sanitized narrative of drug trafficking for profit.  Law enforcement professionals know that drug trafficking enterprises are comprised of integrated networks of street corner dealers, mid-level traffickers, distributors, producers and cartel leaders, whose collective efforts inherently rely on violence and have contributed to the deaths of over 50,000 Americans last year in drug overdoses alone.

Despite the evocative “second chance” narrative that stirs support among sentencing reformers, law enforcement professionals also know that the people who end up in federal prison work hard to get there.  Few offenders go to prison for their first offense, or even the second or third.  Many of the people who end up in federal prison have committed violent crimes, are members of drug trafficking and criminal organizations or simply have chosen to continue to disregard our laws. Because the majority of criminals admit their guilt, plea bargaining involves the dismissal or reduction of related charges, which greatly reduces the criminal histories and sentences of countless criminals. That means the numbers and types of crimes for which many of them are arrested, but never charged or convicted, are incalculable.  Criminals are committing thousands of crimes and violent acts against our citizens for which they are never held accountable.

Seeking justice and keeping the peace, it is federal law enforcement agencies and their state and local partners who will strive to enforce the laws that Congress enacted to protect our country and its citizens.  The surest way to preserve public safety is to honor the laws the people have passed and to enforce them to the fullest.

July 5, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, National and State Crime Data, Who Sentences? | Permalink | Comments (25)

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

July 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Friday, June 30, 2017

Disconcerting data reminder of why drug use (and thus drug crime) is so hard to track and assess

Though told mostly as a public health data story, this new post at FiveThirtyEight also struck me as a criminal justice data story as well.  The lengthy piece by Kathryn Casteel is headlined "Data On Drug Use Is Disappearing Just When We Need It Most," and here is how it starts:

It’s no secret that heroin has become an epidemic in the United States. Heroin overdose deaths have risen more than sixfold in less than a decade and a half. Yet according to one of the most widely cited sources of data on drug use, the number of Americans using heroin has risen far more slowly, roughly doubling during the same time period.

Most major researchers believe that source, the National Survey on Drug Use and Health, vastly understates the increase in heroin use. But many rely on the survey anyway for a simple reason: It’s the best data they have. Several other sources that researchers once relied on are no longer being updated or have become more difficult to access. The lack of data means researchers, policymakers and public health workers are facing the worst U.S. drug epidemic in a generation without essential information about the nature of the problem or its scale.

“We’re simply flying blind when it comes to data collection, and it’s costing lives,” said John Carnevale, a drug policy expert who served at the federal Office of National Drug Control Policy under both Republican and Democratic administrations. There is anecdotal evidence of how patterns of drug use are changing, Carnevale said, and special studies conducted in various localities are identifying populations of drug users. “But the national data sets we have in place now really don’t give us the answers that we need,” he said.

June 30, 2017 in Drug Offense Sentencing, National and State Crime Data, Who Sentences? | Permalink | Comments (3)

Saturday, June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, June 23, 2017

Senate Judiciary Chair Grassley still talking up the prospects for federal statutory sentencing reform

This notable article from the Washington Free Beacon reports on some notable remarks by a critical member of Congress concerning federal sentencing reform.  The article is headlined "Sen. Grassley: Criminal Justice Reform Still on the Table," and here are excerpts:

Sen. Chuck Grassley (R., Iowa) believes that his criminal justice reform agenda, unsuccessful under the Obama administration, still has bright prospects, in spite of the less reform-friendly administration of President Donald Trump. Grassley, chairman of the Senate Judiciary committee, spoke at the American Enterprise Institute on Thursday morning about the Sentencing Reform and Corrections Act (SRCA), a bipartisan bill he first brought up in the last Congress....

"Long prison sentences always come with a cost. A cost to the taxpayers, a cost to families, and to our communities," Grassley said. "In many ways, and in many cases, the severity of the crime justifies these costs. But as we're all aware, that isn't always the case. Hence, the movement for sentencing reform."

The SRCA is meant to address these concerns through a number of approaches, Grassley said. These include expanded "safety valves" for non-violent offenders; a reduction in mandatory minimums for some drug crimes; and a reduction in sentences for offenders who complete programs designed to reduce recidivation. Grassley suggested that while the SRCA had the support of the Obama administration, the Trump White House, which has promised to "make America safe again," may be less friendly to the legislation.

"Obviously, the dynamic is different with a new president," Grassley said, but added that he was nonetheless "confident" about the SRCA's prospects. "We're looking forward to input from the administration" on the SRCA, Grassley said. "We had the support of the Obama administration. I think we have a chance of getting the support of this administration."

"I know that there is both support and opposition within this White House," Grassley said. "I certainly believe that it is consistent to be tough on crime and still support sentencing reform."

"We've been working since November to see what avenues we can have to move this bill along, particularly working with the executive branch of government. I'm confident about its prospects," he said....

Grassley criticized Sessions's comments that the administration would go back to pre-Obama sentencing discretion. "I'm not going to condemn people for finding fault with what Attorney General Sessions did when he spoke about going back to the pre-Obama, pre-Holder sentencing prosecutorial discretion that he gave to his U.S. Attorneys, that it was the wrong way to go. I could even say that I think it was the wrong way to go," he said.

Sessions opposed Grassley's bill when he was in the Senate. According to the Brennan Center for Justice, Sessions "personally blocked" the 2015 SRCA; he also, along with several of his colleagues, authored one of a series of op-eds opposing the bill. Sessions wrote an opinion piece for the Washington Post in June in which he insisted more stringent sentencing was needed to curb surging violent crime. He also attacked those who claimed incarceration was driven largely by low-level, nonviolent drug offenders.

Grassley, however, said Sessions' priorities need not conflict with the SRCA. "There doesn't have to be anything incompatible with what he's doing, with what we're trying to do, because what we do is give people that have been sentenced unfairly, and they feel it, and their lawyers feel it, another bite at the apple, by going before a judge to plead their case, that their sentence ought to be shorter," Grassley said.

Helpfully, the American Enterprise Institute has this webpage with a video of the event at which Senator Grassley spoke, and he had a lot more to say than what is quoted above.

June 23, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Thursday, June 22, 2017

"Jeff Sessions wants a new war on drugs. It won't work."

The title of this post is the headline of this new Washington Post commentary authored by David Cole, who is the national legal director of the American Civil Liberties Union, and Marc Mauer, who is executive director of the Sentencing Project. Here are excerpts:

Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18].  But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem.  His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.

Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases.  That policy urged prosecutors to reserve the most serious charges for high-level offenses.  Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history....  Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.

First, federal prosecutors handle fewer than 10 percent of all criminal cases, so a modest change in their charging policy with respect to a subset of drug cases is unlikely to have a nationwide impact on crime.  The other 90 percent of criminal prosecution is conducted by state prosecutors, who were not affected by Holder’s policy.  Second, the few individuals who benefited from Holder’s policy by definition lacked a sustained history of crime or violence or any connections to major drug traffickers.  Third, the increases in violent crime that Sessions cites are not nationally uniform, which one would expect if they were attributable to federal policy.  In 2015, murder rates rose in Chicago, Cleveland and Baltimore, to be sure.  But they declined in Boston and El Paso, and stayed relatively steady in New York, Las Vegas, Detroit and Atlanta.  If federal drug policy were responsible for the changes, we would not see such dramatic variances from city to city.

Nor is there any evidence that increases in drug overdoses have anything to do with shorter sentences for a small subset of nonviolent drug offenders in federal courts.  Again, the vast majority of drug prosecutions are in state court under state law and are unaffected by the attorney general’s policies.  And the rise in drug overdoses is a direct result of the opioid and related heroin epidemics, which have been caused principally by increased access to prescription painkillers from doctors and pill mills.  That tragic development calls for treatment of addicts and closer regulation of doctors, not mandatory minimums imposed on street-level drug sellers, who are easily replaced in communities that have few lawful job opportunities.

Most disturbing, Sessions seems to have no concern for the fact that the United States leads the world in incarceration; that its prison population is disproportionately black, Hispanic and poor; or that incarceration inflicts deep and long-lasting costs on the very communities most vulnerable to crime in the first place.... Advocates as diverse as the Koch brothers and George Soros, the Center for American Progress and Americans for Tax Reform, the American Civil Liberties Union and Right on Crime agree that we need to scale back the harshness of our criminal justice system.

Rather than expanding the drug war, Sessions would be smarter to examine local conditions that influence crime and violence, including policing strategies, availability of guns, community engagement and concentrated poverty.  Responding to those underlying problems, and restoring trust through consent decrees that reduce police abuse, hold considerably more promise of producing public safety. Sessions’s revival of the failed policies of the past, by contrast, has little hope of reducing violent crime or drug overdoses. 

Prior recent related posts:

June 22, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, June 21, 2017

Notable look at notably tough sentencing patterns in one rural county in Minnesota

Sentencing, like politics, is ultimately always a local story, and this lengthy new MinnPost article takes a deep dive into the notable local sentencing stories of Polk County, Minnesota.  The lengthy article is headlined "Why tiny Polk County sends so many people to prison," and here are excerpts:

If you’re planning to commit a crime in Minnesota, you might want to steer clear of Polk County. This county of 32,000, which hugs the Red River on the North Dakota border, is sparsely populated and largely agricultural, save for East Grand Forks, Crookston and a handful of other small cities set between soybean, wheat and sugar beet fields.

Yet in 2014 it sent more people to prison, per capita, than any other county in Minnesota, a county-by-county analysis of National Corrections Reporting Program data by the New York Times and Fordham University found. That year, the most recent for which data are available, prison admission rates in northwestern Minnesota’s Polk County stick out across the upper Midwest, more closely resembling some of the counties that form a prison belt across the U.S., from Indiana to Kentucky, Missouri Arkansas, Oklahoma, Louisiana and Texas, than it does most of its neighbors.

For every 10,000 Polk County residents, 50 people were admitted to prison in 2014, an increase from 22 per 10,000 residents in 2006 and 39 per 10,000 residents in 2013, among the highest in Minnesota both years. The high prison admissions rate in Polk stands in sharp contrast to lower rates in nearby counties and the Twin Cities: In 2014, 12 per 10,000 residents in Hennepin County went to prison and 19 per 10,000 residents in Ramsey did. Neither rate increased by more than 3 per 10,000 people from 2006.

Why is Polk County sending so many people to prison? Ask Polk County officials what’s behind the high rate of imprisonment, and they’ll likely have an answer for you: drugs.

To some extent, the data bear that out. While for the most part crime and arrest rates were stable between 2006 and 2014 in Polk County, drug crimes are a big exception. Drug crimes went from a rate of 38.6 per 10,000 residents in 2006 to 61.9 per 10,000 residents in 2014. Drug-related arrest rates, likewise, more than doubled, from 25 per 10,000 residents in 2006 to 55 per 10,000 people in 2014....

In Minnesota, how felony offenders are punished depends on where they fall on the Sentencing Guideline Commission’s grid.... In theory, the sentencing guidelines bring uniformity to criminal sentencing in Minnesota’s 87 counties and 10 judicial districts. But there’s some room for discretion on the part of prosecutors and judges built into the system, too. While sentencing guidelines are followed in the vast majority of cases, courts are allowed to impose a softer or harsher sentences “when substantial and compelling aggravating or mitigating factors are present.” In some counties, departures are used more frequently than others.

In Polk County, 14 percent of felony drug offenders between 2006 and 2015 received “aggravated dispositional departures” — usually prison instead of the probation called for in the sentencing guidelines. In Beltrami County and Clay counties, 6 percent and 8 percent did, respectively. Statewide, less than 9 percent of felony drug offenders for whom the sentencing guidelines prescribe probation receive prison....

Kip Fontaine, assistant public defender ... noticed what seems to be a disproportionate number of third-degree charges for drug possession in a school zone or park. A person, say, found to be driving through one of these areas with drugs on them would, in most counties, be charged with this crime in the fifth-degree, a lesser charge, Fontaine said. Not necessarily in Polk. According to the Minnesota Sentencing Guidelines Commission, of 83 people with criminal history scores of zero through three sentenced with third-degree possession in a school zone or park in Minnesota between 2011 and 2015, 36 — nearly half — were in Polk County....

Andrew Larson, the executive director of Tri-County Community Corrections, the government agency that provides probation and detention services in Polk, Red Lake and Norman counties, said he senses a difference in philosophy in Polk County, too. “The Polk County Attorney’s Office is just more aggressive in their prosecution than perhaps what the other counties are, and it’s literally that simple. It’s not a matter of one being right or the other being wrong, it’s just a difference,” he said.

UPDATE: In the comments, federalist astutely suggests noting a similar article about case-processing toughness in a rural mid-west county.  So: New York Times highlights modern rural incarceration realities 

June 21, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6)

Tuesday, June 20, 2017

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

June 20, 2017 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Intricate disputation of AG Sessions' recent defense of his new tougher federal charging/sentencing policy

As noted in this weekend post, the US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors via this opinion piece.  Today, the Washington Post has this new opinion piece by Radley Balko under the the headline "Here are all the ways Jeff Sessions is wrong about drug sentencing."  

The headline of the Balko piece serves as something of a summary of its contents, which involves an intricate "a line-by-line review" of all the key points made by AG Sessions in his piece.  Rather than try to capture all the particulars of the Balko piece here, I will just quote some of his closing commentary: 

Certainly, drug trafficking lowers the quality of life in a community.  Turf wars between drug gangs can make those communities more dangerous.  But again, Sessions himself concedes that prohibition itself creates these problems.  It’s pretty rare that liquor store employees erupt in gun fights over turf.  And if prohibition begets violence, the only way the solution to an increase in violence can be more prohibition is if the new prohibition wipes out drug trafficking entirely.  Otherwise, more prohibition usually just means more violence.  Knock out one major dealer, and new dealers will emerge and go to war to take his place.

We all know that rescinding the Holder memo isn’t going to end drug trafficking.  It isn’t going to affect the opioid crisis.  It isn’t going to move the needle either way on the violence in Chicago or Baltimore.  The most likely outcome is that a few hundred more nonviolent offenders spend a lot more time in federal prison than they otherwise would have.  I suppose it will also give Sessions the satisfaction of having rolled back one of the few substantive criminal-justice reforms of the Obama administration.  But the crime rate and the violence in America’s cities will rise or fall independent of the Holder memo.

The one thing we can all depend on — the one sure thing: Illicit drugs will continue to be available to pretty much anyone who wants to use them.

Prior recent related post:

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

June 20, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Pew analysis finds no relationship between drug imprisonment and drug problems

The Public Safety Performance Project of The Pew Charitable Trusts has this notable new posting concerning a notable new letter and analysis it completed. The posting is headlined "Pew Analysis Finds No Relationship Between Drug Imprisonment and Drug Problems: Letter provides new 50-state data to the federal opioid commission," and here is what it has to say:

On June 19, 2017, The Pew Charitable Trusts submitted a letter to the President’s Commission on Combating Drug Addiction and the Opioid Crisis, outlining an analysis of whether state drug imprisonment rates are linked to the nature and extent of state drug problems—a key question as the nation faces an escalating opioid epidemic. Pew compared publicly available data from law enforcement, corrections, and health agencies from all 50 states.

Pew’s analysis found no statistically significant relationship between states’ drug offender imprisonment rates and three measures of drug problems: rates of illicit use, overdose deaths, and arrests. The findings reinforce previous research that cast doubt on the theory that stiffer prison terms deter drug use and related crime.

Although the federal courts receive the lion’s share of public attention, most of the nation’s criminal justice system is administered by states. State laws determine criminal penalties for most drug offenses, and the states have made different policy choices regarding those punishments, resulting in widely varied imprisonment rates.

For example, Louisiana had the country’s highest drug-offender imprisonment rate in 2014, with 226.4 drug offenders in prison per 100,000 residents. In contrast, Massachusetts’s rate was the lowest, 30.2 per 100,000 residents, less than one-seventh Louisiana’s rate.

As Pew’s letter explained, higher rates of drug imprisonment do not translate into lower rates of drug use, fewer drug arrests, or fewer overdose deaths. And the findings hold even when controlling for standard demographic variables, such as education level, employment, race, and median household income.

The full 13-page Pew letter is available at this link.

June 20, 2017 in Drug Offense Sentencing, Prisons and prisoners | Permalink | Comments (0)

Monday, June 19, 2017

History examining at length "America’s War on Drugs"

The-history-channel-History is in the midst of running a four-part documentary titled simply "America’s War on Drugs."  Here is how the channel describes the lengthy doc:

“America’s War on Drugs” is an immersive trip through the last five decades, uncovering how the CIA, obsessed with keeping America safe in the fight against communism, allied itself with the mafia and foreign drug traffickers.  In exchange for support against foreign enemies, the groups were allowed to grow their drug trade in the United States. The series explores the unintended consequences of when gangsters, war lords, spies, outlaw entrepreneurs, street gangs and politicians vie for power and control of the global black market for narcotics -- all told through the firsthand accounts of former CIA and DEA officers, major drug traffickers, gang members, noted experts and insiders.

Night one of “America’s War on Drugs” divulges covert Cold War operations that empowered a generation of drug traffickers and reveals the peculiar details of secret CIA LSD experiments which helped fuel the counter-culture movement, leading to President Nixon’s crackdown and declaration of a war on drugs.  The documentary series then delves into the rise of the cocaine cowboys, a secret island “cocaine base,” the CIA’s connection to the crack epidemic, the history of the cartels and their murderous tactics, the era of “Just Say No,” the negative effect of NAFTA, and the unlikely career of an almost famous Midwest meth queen.

The final chapter of the series examines how the attacks on September 11th intertwined the War on Drugs and the War on Terror, transforming Afghanistan into a narco-state teeming with corruption.  It also explores how American intervention in Mexico helped give rise to El Chapo and the Super Cartels, bringing unprecedented levels of violence and sending even more drugs across America’s borders.  Five decades into the War on Drugs, a move to legalize marijuana gains momentum, mega-corporations have become richer and more powerful than any nation’s drug cartel, and continuing to rise is the demand for heroin and other illegal drugs.

June 19, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, June 18, 2017

Could jail be "the answer" for drug addicts?

The question in the title of this post is prompted by this New York Times opinion piece headlined "Addicts Need Help. Jails Could Have the Answer." This piece is authored by Sam Quinones, the journalist and author of the widely praised "Dreamland: The True Tale of America’s Opiate Epidemic." Here is how the lengthy piece gets started and its final line:

Not long ago, I visited a Narcotics Anonymous meeting where men with tattoos and short-cropped hair sat in a circle and talked out their errors. One had lived under an overpass, pimping his girlfriend’s daughter for cash to buy heroin. As the thought brought him to tears, his neighbor patted his shoulder. Others owned to stealing from grandparents, to losing jobs and children. Soon, most in the room — men with years of street addiction behind them — were wiping their eyes.

What made the meeting remarkable, however, was not the stories, but where it was taking place. Unit 104 is a 70-man pod in Kenton County Detention Center in northern Kentucky, across the Ohio River from Cincinnati. The unit, and an equivalent one for women, is part of a new approach to jail made necessary by our nationwide epidemic of opiate addiction. Drug overdoses are now the leading cause of death among Americans under 50.

As the country has awakened to that epidemic, a new mantra has emerged: “We can’t arrest our way out of this,” accompanied by calls for more drug-addiction treatment. Yet the opiate epidemic has swamped our treatment-center infrastructure. Only one in 10 addicts get the treatment they need, according to a 2016 surgeon general’s report. New centers are costly to build, politically difficult to find real estate for and beyond the means of most uninsured street addicts, anyway.

So where can we quickly find cheap new capacity for drug treatment accessible to the street addict? Jail is one place few have thought to look.

Jails typically house inmates awaiting trial or serving up to a year for a misdemeanor crime. Many inmates are drug addicts. They vegetate for months, trading crime stories in an atmosphere of boredom and brutality. Any attempt at treatment is usually limited to a weekly visit by a pastor or an Alcoholics Anonymous volunteer. When inmates are released, they’re in the clothes they came in with, regardless of the weather, and have no assistance to re-enter the real world. This kind of jail has always been accepted as an unavoidable fixed cost of government.

But the sheer dimensions of the opiate-addiction epidemic are forcing new ideas. One of them, now being tried in Kentucky, is jail not as a cost but as an investment in recovery. Jails as full-time rehab centers — from lights on to lights out. Jailing addicts is anathema to treatment advocates. However, as as any parent of an addict can tell you, opiates are mind-controlling beasts. A kid who complained about the least little household chore while sober will, as an addict, walk through five miles of snow, endure any hardship or humiliation, to get his dope.

Waiting for an addict to reach rock bottom and make a rational choice to seek treatment sounds nice in theory. But it ignores the nature of the drugs in question, while also assuming a private treatment bed is miraculously available at the moment the addict, who is usually without insurance, is willing and financially able to occupy it. The reality is that, unlike with other drugs, with opiates rock bottom is often death. (Drug overdose deaths last year most likely exceeded 59,000, the most ever in the United States, The Times found in an analysis of preliminary data this month, up about 19 percent over 2015.)

Jail can be a necessary, maybe the only, lever with which to encourage or force an addict who has been locked up to seek treatment before it’s too late. “People don’t go to treatment because they see the light,” said Kevin Pangburn, director of Substance Abuse Services for the Kentucky Department of Corrections. “They go to treatment because they feel the heat.”

Jail may in fact be the best place to initiate addict recovery. It’s in jail where addicts first come face-to-face with the criminal-justice system, long before they commit crimes that warrant a prison sentence. Once in custody and detoxed of the dope that has controlled their decisions, it’s in jail where addicts more clearly behold the wreckage of their lives. And it is at that moment of clarity and contrition when they are typically plunged into a jailhouse of extortion, violence and tedium....

Amid this national epidemic of opiate addiction, rethinking jail, as Kentucky has, as a place of sanctuary and recovery for a population that has lost hope, might not just be advisable; it may be indispensable.

June 18, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Saturday, June 17, 2017

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

The US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors.  This opinion piece carries this headline: "Jeff Sessions: Being soft on sentencing means more violent crime. It’s time to get tough again."  And here are excerpts (with on particular line emphasized by me):

[I]n 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs.  The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent.  Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.

Before that policy change, the violent crime rate in the United States had fallen steadily for two decades, reaching half of what it was in 1991.  Within one year after the Justice Department softened its approach to drug offenders, the trend of decreasing violent crime reversed. In 2015, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

And while defenders of the 2013 policy change point out that crime rates remain low compared with where they were 30 years ago, they neglect to recognize a disturbing trend that could reverse decades of progress: Violent crime is rising across the country. According to data from the FBI, there were more than 15,000 murders in the United States in 2015, representing a single-year increase of nearly 11 percent across the country. That was the largest increase since 1971. The increase in murders continued in 2016. Preliminary data from the first half of 2016 shows that large cities in the United States suffered an average increase in murders of nearly 22 percent compared with the same period from a year earlier.

As U.S. attorney general, I have a duty to protect all Americans and fulfill the president’s promise to make America safe again. Last month, after weeks of study and discussion with a host of criminal-justice participants, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that once again authorizes prosecutors to charge offenses as Congress intended. This two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case in most cases, and allows them to exercise discretion where a strict application of the law would result in an injustice. Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate. That is the way good law enforcement has always worked.

Defenders of the status quo perpetuate the false story that federal prisons are filled with low-level, nonviolent drug offenders. The truth is less than 3 percent of federal offenders sentenced to imprisonment in 2016 were convicted of simple possession, and in most of those cases the defendants were drug dealers who accepted plea bargains in return for reduced sentences. Federal drug offenders include major drug traffickers, gang members, importers, manufacturers and international drug cartel members. To be subject to a five-year mandatory sentence, a criminal would have to be arrested with 100 grams or more of heroin with the intent to distribute it — that is 1,000 doses of heroin.

The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels. Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015. My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend — one that puts at risk the hard-won gains that have made our country a safer place.

Some skeptics prefer to sit on the sidelines and criticize federal efforts to combat crime. But it’s not our privileged communities that suffer the most from crime and violence. Minority communities are disproportionately impacted by violent drug trafficking. Poor neighborhoods are too often ignored in these conversations. Regardless of wealth or race, every American has the right to demand a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American communities are ravaged by crime and violence.

There are those who are concerned about the fate of drug traffickers, but the law demands I protect the lives of victims that are ruined by drug trafficking and violent crime infecting their communities. Our new, time-tested policy empowers police and prosecutors to save lives.

There are lots of reasons and lots of ways to question any efforts to directly link the recent uptick in violent crime over the last few years to changes in federal prosecutorial policies.  But I have emphasized one particular line in the opinion piece in order to help enhance understanding of the thinking behind the new Sessions Memo. The Attorney General reasonably thinks he must  "do something" in response to recent increases in violent crime, and the most obvious and easy thing for him to do is to rescind Holder-era policy guidance and return to the federal prosecutorial policies of earlier era. (Of course, the prosecutorial policies of earlier era helped swell the federal prison population dramatically and, as noted here, the Department of Justice is already predicting that federal prison populations will start growing again after notable recent declines.)  

Prior recent related posts: 

June 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

Thursday, June 15, 2017

"Support Grows for Civil Commitment of Opioid Users"

The title of this post is the headline of this notable new Stateline article.  Here is how it gets started:

Amid an opioid addiction epidemic that is killing more than 90 Americans every day, there is a growing movement to make it easier for relatives and health care providers to quickly secure court orders to forcibly confine and treat people who are addicted to drugs.  Most states have civil commitment laws primarily designed to protect people with mental illness from themselves and others.  Many of the laws include drug addiction and alcoholism as a justification for temporary confinement, or at least don’t preclude it.

But in practice, most commitment laws have been ineffective when it comes to people who use heroin and other opioids, in part because some judges have been leery of taking away a person’s civil liberties for what society has long perceived as a moral failing.  Unlike people with severe mental illness, people who are addicted to drugs typically retain the mental capacity to take care of their basic needs, even though the chronic disease alters the brain, making the person eventually value drug use above all else.

New Hampshire, Pennsylvania and Washington are considering new civil commitment laws specifically designed for opioid use.  Kentucky has gone back to the drawing board after failing to enact a commitment law for opioid addiction last year.

And in Massachusetts, the one state where civil commitment has been used extensively for opioid addiction, Republican Gov. Charlie Baker wants to make it even more common....

Historically, confining people against their will has been fraught with moral and legal ambiguities and haunted by reports of abuse.  But the parents of young adults who use opioids are pushing state lawmakers and governors to make intervention easier, even as physicians and state health officials search for ways to break the cycle of repeated overdoses.

Addiction professionals generally agree that civil commitment can save lives. But they argue that without effective treatment, confining people with an addiction may do more harm than good.  “People who use substances and have addictions still have civil rights,” said Dr. Alex Walley, director of an addiction medicine fellowship at Boston Medical Center.  “The real question is whether effective treatment is available, which in the case of opioids, is going to be medication. And it’s not OK to limit it to just one medicine,” Walley said.  Another concern is whether the state can ensure that continued treatment will be available once the person is released, he said.

June 15, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, June 08, 2017

"Neither Justice Nor Treatment: Drug Courts in the United States"

PhrThe title of this post is the title of this notable new report issued by the group Physicians for Human Rights. Here is an excerpts from the report's executive summary:

U.S. drug courts [are] specialized courts within the criminal justice system set up to provide alternative sentencing options — treatment instead of jail or prison time — for people charged with criminal behavior linked to drug possession, sale, or addiction.  The first courts were opened in 1989 to ease dockets and jails that were overflowing as a result of strict federal and state laws passed in the 1980s in an attempt to reduce drug supply and consumption.

Almost three decades later, there are more than 3,100 drug courts operating in the United States.  But while the courts’ proponents say they reduce recidivism for people with substance use disorders, critics say the system abuses due process, often mandates treatment for people who don’t actually need it — people without drug dependence — and fails to provide quality care to many who do.

Physicians for Human Rights (PHR) assessed the availability and quality of substance use disorder treatment through drug courts in three states — Florida, New Hampshire, and New York, chosen for the diversity of their drug court and health system approaches — and found major obstacles to quality evidence-based treatment for drug court participants in all three states.  Overall, PHR found that drug courts largely failed at providing treatment to those who truly needed it, and filled up limited treatment spaces with courtmandated patients who didn’t always need the care.  In many cases, court officials with no medical background mandated inappropriate treatment not rooted in the evidence base, or mandated treatment for people who didn’t need it.  In all cases, the functioning and mandate of the drug courts posed significant human rights concerns.

At the most basic level, PHR found that access to quality treatment was hampered by the inherent tension between a punitive criminal justice logic and therapeutic concern for drug court participants as patients.  In fact, despite the stated intention of drug courts to treat people who use drugs as ill rather Executive Summary than deviant, drug court participants were often punished for relapsing, missing therapy appointments, or otherwise failing to follow court rules.

One key concern motivating this research was whether drug courts were able to appropriately diagnose and facilitate treatment for people with substance use disorders who are in conflict with the law.  We found that, in many cases, they were not.  Diagnosis and initial treatment plans for drug court participants were often developed by people with no medical training or oversight, at times resulting in mandated treatment that was directly at odds with medical knowledge and recommendations.  The most egregious example of this was the refusal, delay, or curbing of medication-assisted treatment (MAT) (also known as substitution or replacement therapy) to people with opioid use disorders, despite evidence that treatment for such disorders in many cases requires long-term — sometimes permanent — medication.  Some drug courts also prevented participants from accessing or staying on medically prescribed treatment for anxiety, Attention Deficit Hyperactivity Disorder, and other chronic health problems.

Human rights concerns are thus particularly relevant for drug courts, as these courts blur the line between voluntary and coerced treatment, and compel participants to waive the right to confidentiality.  Furthermore, most drug courts operate with regulations that subject medical expertise and advice regarding treatment to prosecutorial oversight and potential veto, raising questions about a person’s ability to access impartial evidencebased care.  Even where courts did not actively violate human rights protections of their participants, the regulatory set-up constantly threatened such violations.

June 8, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

More interesting new "Quick Facts" publications from the US Sentencing Commission

The US Sentencing Commission has released two notable new Quick Facts covering "Drug Trafficking Offenses" and "Federal Offenders in Prison" as of February 2017. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the many intriguing data details from these two small data-filled publications:

June 8, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, June 06, 2017

Senators Grassley and Feinstein working on enhanced federal penalties for synthetic opioid offenses

This slightly confusing new NPR story, headlined "Lawmakers Consider Tough New Penalties For Opioid Crimes, Bucking Trend," suggests that the only kind of sentencing reform being now discussed in Congress involves increasing rather than decreasing drug offense sentences.  Here are the still opaque details as reported by NPR (with my emphasis added, for subsequent comment):

For nearly four years now, an unusual coalition of Republicans and Democrats has worked to reduce mandatory prison terms for many federal drug crimes.  But that bipartisan movement may be shallower than it appears. Indeed, Republican Sen. Chuck Grassley of Iowa and Democratic Sen. Dianne Feinstein of California, who both supported a cut-back on some drug punishments, are preparing a bill that would create tough new penalties for people caught with synthetic opioid drugs.  Grassley chairs the Senate Judiciary Committee, and Feinstein is the panel's ranking member.

A draft of the legislation reviewed by NPR suggests the plan would give the attorney general a lot more power to ban all kinds of synthetic drugs, since criminals often change the recipe to evade law enforcement.  It would impose a 10-year maximum sentence on people caught selling them as a first offense. That would double if they do it again.

Michael Collins of the Drug Policy Alliance, which advocates for lighter punishments for drug offenders, has seen language in the proposal. He said he thinks it's a bad idea. "These synthetic drugs are added to heroin often outside the U.S., but the bill takes such a broad approach that it's penalizing individuals who sell drugs at a low level inside the U.S., and so it's going to do nothing to deter and stop the supply of drugs," Collins said.

Collins said drug addiction is a public health challenge. He said sending more people to prison won't help, just as it didn't help in the crack cocaine era a few decades ago. "The problem is really we've been here before with this approach in terms of the war on drugs and ramping up sentences, and we know that escalating sentences ... does nothing to help the opioid epidemic," Collins said. "In fact, it only serves to increase the prison population."

Many people inside the Justice Department disagree. Just last week, federal prosecutors in Utah announced charges against a half-dozen people in suburban Salt Lake City.  Authorities say two of them quit their jobs at eBay to embark on a new enterprise. They allegedly ordered a version of the synthetic opioid fentanyl by mail from China, then pressed the drug into counterfeit pills and sold them online to customers across the country.

U.S. Attorney John Huber brought the case. "Like much of the country, we are not escaping the heroin and opioid epidemic and this latest version or brand of it with the fentanyl danger just makes it that much more pressing of a concern for us," Huber said.  The alleged ringleader — 27-year-old Aaron Michael Shamo — could spend the rest of his life in prison if he's convicted under the current drug laws.  "Mr. Shamo faces a mandatory life minimum sentence if he's convicted and that shows how serious this is, when you're dealing in such large quantities of such a dangerous substance," Huber said. "This is as serious as it gets."

As this NPR story already indirectly indicates, severe federal sentences are already on the books for serious drug dealers who traffic in fentanyl, and I am pretty sure a first offense of even a small amount of fentanyl dealing already carries a mandatory maximum sentence of decades. Thus, I think the highlighted line from the article here meant to report that Senators Grassley and Feinstein are working on a bill that would have a 10-year mandatory minimum sentence for even low-lever, first-time dealing of fentanyl.

I am not yet going to criticize a bill I have not yet seen, nor am I going to criticize the instinct of many legislators and law enforcement officials that drastic action needs to be taken in response to the still growing opioid epidemic.  But I am certainly prepared to express disappointment that leaders like Senators Grassley and Feinstein still apparently think that new mandatory minimum sentencing provisions serve as a wise and appropriate response to a national drug problem.

June 6, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Sunday, June 04, 2017

Federal District Judge Mark "Bennett says 80% of the mandatory sentences he hands down are unjust"

The quote in the title of this post's headline is just one of a number of notable lines from this extended CNN article headlined "The judge who says he's part of the gravest injustice in America." Here is some of the context and particulars from the article:

[U.S. District Court Judge Mark] Bennett seems exasperated, exhausted almost, as he explains he must sentence [Susan] Rice to a full five years -- the mandatory minimum required by law. It is a sentence he deems unjust, too much for a low-level addict, just for being caught with a certain weight of drugs.  

Bennett makes sure the record reflects he felt strongly enough to request that Iowa's US Attorney consider waiving the mandatory minimum. He accepts the defense mitigation that Rice had never been in trouble before she was in her 50s, when she began drinking heavily after a bad divorce and was introduced to meth. She met a mid-level dealer who offered her a mattress in his basement and free meth if she would drive him around. A willing drug mule to feed her addiction? Yes. But not the drug trafficker or conspirator whom the charges and mandatory minimum sentences were designed to target, the judge believed.

His plea fell on deaf ears.  He was told there was no option for Rice to be treated as an exception to the law. "I strongly disagree with that decision," the judge says firmly from the bench.  It is not the first time he has felt this way. Bennett says 80% of the mandatory sentences he hands down are unjust -- but that he is handcuffed by the law, which leaves no room for judicial discretion to consider a sentence based on individual circumstances of the defendant. 

Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins.  Bennett says if he had the power, he would jail Rice for perhaps a year, or 18 months.  Across the street in a state courthouse, she would have been put on probation, he says.  "I think it's a miscarriage of justice," Bennett says. "But you know people are entitled to their own sense of what justice is."

Bennett hoped the tide was turning after members of both parties began pushing for sentencing reform on both state and federal levels, arguing it had been a huge mistake.  Now Jeff Sessions, Donald Trump's attorney general, has instructed that the law governing mandatory minimums be enforced with renewed vigor. "If you are a drug trafficker," Sessions said after issuing his memo to prosecutors, "we will not look the other way. We will not be willfully blind to your misconduct."

Bennett thinks this approach is unjust. "I basically couldn't live with myself if I didn't speak out," he says, standing in the center of his courtroom only hours after sentencing Rice. "I'm compelled to talk about it because I think it's one of the gravest injustices in the history of America."  Year after year, giving out those sentences, is wearing on him.  "The burden of having given so many unjust sentences is a very heavy thing for me to carry around," Bennett says beginning to choke up. "I do not consider myself soft on crime, but I consider myself opposed to mandatory minimums for low level non-violent drug dealers who are basically addicts," he says....

The National Association of Assistant US Attorneys, made up of those who prosecute federal cases, supports Sessions' push to charge the most serious crime that is provable.  "It's an effective way of protecting the public and it has served us well for an awful long time," the group's president Larry Leiser says.  "People who were eligible for mandatory minimums are truly people who are involved in significant quantities of these very dangerous substances."  He rejects recent efforts to relax sentencing laws.  And he rejects the view the law unfairly catches non-violent addicts who are simply feeding their addiction by selling drugs.  And he hails the provision that lets offenders help themselves to lower sentences if they in turn help the authorities take serious criminals off the streets.

June 4, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Friday, June 02, 2017

Tracking state work on criminal justice and drug policy through Stateline

The Pew Charitable Trusts Stateline site does a great job tracking state-level developments on an array of criminal justice and drug policy issues. Here are some examples from recent weeks that caught my eye:

 

June 2, 2017 in Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Thursday, June 01, 2017

Is the Ninth Circuit right in holding a federal sentencing judge cannot reject a jury special verdict finding on drug quantity?

The question in the title of this post is one that has been simmering in the Ninth Circuit and resulted in today's release of an amended opinion and a dissent from the denial of en banc review in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. June 1, 2017) (available here). Here is the heart of the amended opinion:    

[T]he record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances....

In our case, the government proposed the verdict form that set both a lower and an upper boundary for the amount of drugs involved.  Having proposed the language, the government now urges us to read the verdict form as “acquitt[ing] [Pimentel-Lopez] on the 500-gram amount,” with which he was initially charged.  But none of the choices offered by the verdict form were capable of capturing that view.  That may have been a blunder, but the jury answered the questions it was asked and so the die is cast: The government cannot disavow the finding that the jury makes as a result....

Nothing prevented the government from proffering [a different special verdict] form.  But, having proposed a form that required the jury to find that the drug quantity was less than 50 grams, the government locked itself out of the possibility of proving more than 50 grams at sentencing. It can easily avoid this pitfall in future cases....

Because the district court may not contradict an affirmative finding by the jury, we must vacate the sentence and remand with instructions that defendant be resentenced on the premise that his crimes involved less than 50 grams of drugs.

The dissent from the denial of en banc authored by Judge Graber (and joined by five other judges) gets started this way:

I respectfully dissent from the denial of rehearing en banc. The panel held that when a jury finds that the amount of drugs the government has proved, beyond a reasonable doubt, is attributable to a defendant falls within a specified range, the sentencing judge may not find by a preponderance of the evidence that the amount of drugs attributable to the defendant is higher than that range.  United States v. Pimentel-Lopez, 828 F.3d 1173, 1176–77 (9th Cir. 2016). That holding is wrong both as a matter of logic and as a matter of Supreme Court law, it has far-reaching consequences for the prosecution of drug crimes in our circuit, and it conflicts with holdings in other circuits.  For all those reasons, we should have reheard this case en banc.

As long as the Supreme Court's 1999 Watts ruling is still good law, I think the dissent here has the better of the legal argument (though post-Watts SCOTUS Sixth Amendment jurisprudence arguably undermines Watts).  But I also think Watts is a rotten decision that ought to be formally overruled.  For that reason, I would love to see the US Solicitor General seek Supreme Court review and then see the defendant suggest a reconsideration of Watts if the Justices care to take up the case.

June 1, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, May 31, 2017

Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

The Second Circuit today released a 139-page panel opinion in US v. Ulbricht, No. 15-1815 (2d Cir. May 31, 2017) (available here), which starts this way:

Defendant Ross William Ulbricht appeals from a judgment of conviction and sentence to life imprisonment entered in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.).  A jury convicted Ulbricht of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services.  He challenges several aspects of his conviction and sentence, arguing that (1) the district court erred in denying his motion to suppress evidence assertedly obtained in violation of the Fourth Amendment; (2) the district court committed numerous errors that deprived him of his right to a fair trial, and incorrectly denied his motion for a new trial; and (3) his life sentence is both procedurally and substantively unreasonable.  Because we identify no reversible error, we AFFIRM Ulbricht’s conviction and sentence in all respects.

The sentencing discussion covers roughly the last 25 pages of this lengthy unanimous panel opinion, and it includes a number of notable passages while covering a lot of notable ground. Here are just a few highlights of an opinion that sentencing fans and drug policy folks should read in full:

Ulbricht’s only claim of procedural error is that it was improper for the district court to consider six drug-related deaths as relevant to his sentence because there was insufficient information connecting them with drugs purchased on Silk Road.  In terms of our sentencing jurisprudence, Ulbricht claims that the district court relied on clearly erroneous facts in imposing sentence.  We are not persuaded....

[I]t was certainly appropriate for the district court to consider the risk of death from use of drugs in assessing the seriousness of the offense conduct, one of the factors that a judge must consider in imposing sentence.  See 18 U.S.C. § 3553(a)(2)(A).  That appears to be the only way the judge in this case used the evidence of the drug-related deaths. Emotionally wrenching as the statements of the decedents’ parents were, we cannot and do not assume that federal judges are unable to put their sympathies for particular victims to one side and assess the evidence for its rational relationship to the sentencing decision. And here, the record makes clear that the district court did not use the evidence of the drug-related deaths to enhance Ulbricht’s sentence, either as a formal matter under the Guidelines or otherwise....

[W]hile a life sentence for selling drugs alone would give pause, we would be hard put to find such a sentence beyond the bounds of reason for drug crimes of this magnitude. But the facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal.  Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite....

Ulbricht and amici point out that life sentences are rare in the federal system, typically reserved for egregious violent crimes, thus rendering Ulbricht’s sentence substantively unreasonable.  Moreover, according to amici, life sentences are normally imposed in cases where that is the district judge’s only sentencing option.  Thus, they claim that Ulbricht’s life sentence is substantively unreasonable in the context of the federal system, where life sentences are particularly rare for those with no criminal history who are convicted of drug crimes.

We agree with Ulbricht that life sentences are extraordinary and infrequent, which is as it should be.  But the rarity of life sentences does not mean that the imposition of such a sentence in this case is substantively unreasonable under our law.  Each case must be considered on its own facts and in light of all of the circumstances of a particular offense as well as other relevant conduct, which, in this case, includes five attempted murders for hire.  As we have described, the district court carefully considered Ulbricht’s offense, his personal characteristics, and the context for his crimes, recognizing that only exceptional cases justify such a severe sentence. Although we might not have imposed the same sentence ourselves in the first instance, on the facts of this case a life sentence was “within the range of permissible decisions” that the district court could have reached. 

A few prior related posts:

May 31, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (6)

Wednesday, May 24, 2017

"Ambition and Fruition in Federal Criminal Law: A Case Study"

The title of this post is the title of this interesting and timely new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law — who ultimately gets prosecuted, and for what conduct — diverge, sometimes markedly, from lawmakers’ and enforcers’ aims?  This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders — large scale traffickers, violent dealers, and the worst recidivists — yet has imprisoned large numbers of offenders outside these categories.  In this respect, federal drug enforcement is a case study in the ambition/fruition divide.

Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise.  These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers.  Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim.  This insight carries important implications for reform, both within drug enforcement and outside it.  Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root.  In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.

May 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, May 22, 2017

"Sentencing Synthetic Cannabinoid Offenders: 'No Cognizable Basis'"

The title of this post is the title of this short notable piece by Brad Gershel now available via SSRN. Here is the abstract:

Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system.  Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support.  As prosecutions for SSC accelerate — and in the absence of swift and meaningful reform — federal courts will continue to sentence defendants via a base-offense range that was never justified.

May 22, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, May 18, 2017

Highlighting sentencing reform's momentum in the states despite prosecutorial change of course by US Attorney General

The New York Times has this extended new article detailing recent state sentencing reform realities that stand in contrast to the decision last week by Attorney General Sessions to promulgate tougher charging and sentencing guidelines.  The article is headlined "States Trim Penalties and Prison Rolls, Even as Sessions Gets Tough," and here are excerpts:

Louisiana has the nation’s highest incarceration rate.  But this week, Gov. John Bel Edwards struck a deal to reduce sentences and the prison population, saving millions annually. If lawmakers approve the changes, Louisiana will be following more than 30 states, including Georgia, Texas and South Carolina, that have already limited sentences, expanded alternatives to incarceration such as drug treatment, or otherwise reduced the reach and cost of the criminal justice system.  Many of those states say they have saved money while crime rates have stayed low.

In Washington, though, the nation’s top law enforcement officer, Attorney General Jeff Sessions, has charted the opposite course.  He announced last week that federal prosecutors should aim to put more people in prison for longer periods, adopting the sort of mass-incarceration strategy that helped flood prisons during the war on drugs in the 1980s and 1990s.  His move — which he said would promote consistency and respect for the law — alarmed critics who feared that the Trump administration was embracing failed, even racist, policies.

Even more, Mr. Sessions’s approach conflicted with one of the few major points of bipartisan national agreement over the past decade, that criminal justice could be more effective by becoming less punitive to low-level offenders, treating root causes of crime like drug addiction, and reserving more resources to go after serious, violent criminals.

But if Mr. Sessions’s appointment has dampened the hopes of those wishing for congressional action to reduce incarceration, advocates say it has had little effect on state efforts. “There was a lot of speculation that with the rhetoric from the presidential campaign, there would be a drop in momentum, but we haven’t seen that,” said Marc A. Levin, the policy director for Right on Crime, a group at the fore of conservative efforts to reduce incarceration rates.  “There have been so many successes in the last several years, particularly in conservative states, that it continues to fuel other states to act,” Mr. Levin said.

The consensus began with a cold, objective judgment that taxpayers were not getting a good return on investment for money spent on prisons.  Bloated corrections budgets took money that could be spent on schools, roads or tax breaks, while many of those who went through the prison system went on to offend again.  Among Republicans and Democrats alike, concern also grew that too many nonviolent criminals who were no threat to society were being imprisoned and given little chance to reform and re-enter mainstream society....

It has not hurt that early adopters included tough-on-crime red states like Texas, which began passing major criminal justice revisions in 2003.  “It was a Nixon-goes-to-China thing, and was really helpful in letting other states know, ‘The water is warm; you can do this,’” Mr. Ring said.  In contrast, he added, Mr. Sessions’s directive flies in the face of state-level successes. “We’re going to double down on an approach everybody else has walked away from,” is how Mr. Ring characterized it.

So far this year, Michigan and Georgia, which previously rewrote their criminal justice laws, have already approved a new round of changes.  In Oklahoma, where Mr. Trump handily carried every county in November, another vote was also popular: Residents approved by a 16 percentage point margin a ballot proposal calling on legislators to curb prison rolls and downgrade numerous drug and property crimes to misdemeanors from felonies.

“Basically, in Oklahoma we’re just warehousing people in prison, and we’re not trying to rehabilitate anybody because of budget constraints,” said Bobby Cleveland, a Republican state representative who is chairman of the Public Safety Committee. Oklahoma has the nation’s No. 2 incarceration rate. The state is now considering how to heed the voters’ advice, including debating major criminal justice changes. The effort faces opposition from district attorneys who have slowed some pieces of legislation, but the proposals have the firm backing of Gov. Mary Fallin, a Republican. Supporters acknowledge that it may take a few tries to succeed. “Texas didn’t do it in one year, either,” Representative Cleveland said.

Louisiana is also moving toward change. On Tuesday, Governor Edwards, a Democrat who has made reducing the prison population a centerpiece of his administration, announced that he had reached an agreement with the state’s politically powerful district attorneys to revise criminal justice laws. The deal, which still faces a vote in the Legislature, would reduce penalties for minor drug possession, give judges more power to sentence people to probation instead of prison, limit how many theft crimes qualify as felonies, and reduce mandatory minimum sentences for a number of crimes.

Last year, it also seemed there was a fair chance that even Congress would get in on the action with a bipartisan bill to reduce mandatory minimum sentences for some drug crimes. The bill never got a vote on the floor, and some feared that the appointment of Mr. Sessions, who opposed the legislation as a senator, was a sign that President Trump would never support it. But in March, Mr. Trump’s son-in-law and senior adviser, Jared Kushner, met with pro-reform senators, including Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, signaling he considered the issue a priority....

While Mr. Sessions has warned of what he says is a coming surge in crime, advocates for reducing incarceration say they are frustrated by how their goals are often cast as adverse to public safety. “The states that have most significantly reduced their prison population have also seen the biggest drops in their crime and recidivism rates,” said Holly Harris, a former general counsel of the Kentucky Republican Party who is now executive director of the U.S. Justice Action Network. “Reform makes us safer,” Ms. Harris said. “There’s a misperception with prosecutors that somehow reform is anti-law enforcement, and that couldn’t be further from the truth.”

May 18, 2017 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Highlighting how the Sessions Memo may have particular impact for drug trafficking cases in certain districts

News2-2-Graph-SentencingWith thanks to commenter Daniel for the tip, I just saw this notable local article from New Mexico providing a notable local perspective on the potential impact of the new Sessions federal charging/sentencing memo.  The article is headlined "Two Steps Back: How Jeff Sessions’ memo on federal prosecutions could take New Mexico back to a harsher era," and here are excerpts:

A directive from newly appointed US Attorney General Jeff Sessions instructing prosecutors to seek the most severe charges available threatens to stunt recent progress toward less federal prison time for low-level drug offenders in New Mexico, defense lawyers and drug policy reform advocates tell SFR.

“Drug mule” cases make up many of the drug crimes prosecuted in federal court in New Mexico, federal public defender John Butcher says. Some low-level drug runners who get caught mid-shipment are apprehended in Albuquerque, the first overnight stop on Amtrak’s Southwest Chief train from Los Angeles to Chicago. Others are picked up throughout the federally designated “High Intensity Drug Trafficking Area,” which runs east from Farmington down to Santa Fe and into Albuquerque before blanketing most of the southern border from Roswell on. The vast majority of federal drug charges in the state are for trafficking. Possession and brokering drug deals comprise a smaller percentage of crimes.

Drug mule cases, most often involving nonviolent and low-level drug offenders, were among those singled out in a memo issued by former attorney general Eric Holder in August 2013. It encouraged prosecutors not to charge such people with crimes that could trigger stiffer mandatory minimum sentences, which prevent judges from sentencing defendants to prison for fewer than a predetermined number of years. For example, since 1986, federal law has mandated that a person convicted of holding five kilograms of cocaine with intent to distribute be sentenced to a minimum of 10 years in prison for a first offense.

Holder asked prosecutors to back off. If somebody was arrested with five kilograms of cocaine, but was not an organizer, did not have deep ties to criminal groups and wasn’t carrying a gun or another indicator of violent intent, prosecutors were asked not to charge that person with the quantity that would have triggered the 10 years. Data from the US Sentencing Commission suggests that some federal prosecutors in New Mexico may have heeded Holder’s directive. It shows that the percentage of sentenced federal drug offenders who received mandatory minimums immediately dropped from 42 percent in 2013 to 25 percent in 2014, and even fell to 20 percent in 2015, the most recent year for which information is available. That’s about half the figure from 2006, the first year the commission began tracking this data. The decrease came even as the number of people prosecuted for trafficking rose from an average of 586 between 2010 and 2012—before the Holder directive—and 646 between 2014 and 2016.

But Sessions has now directed prosecutors to reverse course. The new attorney general wants federal prosecutors to seek the most serious and readily provable charge against all defendants—regardless of circumstance. “This is going to go after the low-level minimum participants with minor records, because they’re the ones who were getting breaks [under Holder],” Butcher tells SFR. “Breaks” didn’t mean that low-level runners weren’t being charged or sentenced to prison after 2013, he says. But in some cases, they weren’t getting the book thrown at them. Butcher suggests the new policy will have an outsized effect in New Mexico, with its relatively higher number of trafficking cases involving nonviolent offenders....

Since 2013, Santa Fe’s Law Enforcement Assisted Diversion (LEAD) program, wherein police work with case managers and the local district attorney to enroll low-level offenders in treatment programs, has served as a national example for non-punitive approaches to drug use.  District Attorney Marco Serna doesn’t think there’s much overlap between those who would qualify for LEAD and those who could be charged with a federal drug crime, but he acknowledges that the city’s approach stands in contrast to Sessions’ hardline.  “For nonviolent crimes, we have our own state and local statutes, and luckily I get to influence how we handle it in the first district,” Serna says. “And we won’t be taking that approach.”

Prior recent related posts: 

UPDATE: I just saw this notable new New York Times article which drills even deeper into the impact of the Holder Memo by identifying a number of low-level federal drug offenders who seemingly benefited from more lenient charging practices.  The piece is headlined "5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays." and it is interesting to see the cases profiled in the article and even more interesting to consider whether the offenders in the article might have been able, even if charged with more serious offenses, been able to avoid the application of a mandatory minimum sentence through the statutory safety valve or through providing cooperation.

May 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Ninth Circuit dodges federal marijuana offender's claim his imprisonment contravenes appropriations rider

As everyone involved in or following marijuana reform knows, Congress in recent years has included in its omnibus appropriations bills a rider that prevents the US Department of Justice (DOJ) from using any funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."  Yesterday, a Ninth Circuit panel considered in Davies v. Benov, No. 15-17256 (9th Cir. May 17, 2017) (available here), a notable contention concerning this rider from a federal prisoner.  Here are the basics from the opinion:

Davies owned and operated medical marijuana dispensaries in Stockton and Sacramento, California, which he contends complied with state and local medical marijuana laws. Davies, however, was charged with violating federal drug laws ... [and] entered into a plea agreement, agreeing to a five-year prison term and pleading guilty to the ten counts filed against him....

Davies filed a habeas corpus petition under 28 U.S.C. § 2241 in the Eastern District of California, contending that the BOP’s use of federal funds to incarcerate individuals, such as himself, who engaged in conduct permitted by state medical marijuana laws violates the appropriations rider.

I recall talking to some lawyers back when Congress first enacted the medical marijuana appropriations rider that, if the text were interpreted very broadly, it could arguably preclude the federal Bureau of Prisons (which is part of DOJ) from spending any of its budget on those incarcerated for state-compliant medical marijuana activities. So I am not shocked that this argument made it to the Ninth Circuit. But, as this concluding passage from Davies highlights, this argument still has not yet been addressed on the merits:

The collateral-attack waiver provision in Davies’s plea agreement bars him from this particular challenge to the BOP’s use of federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. Because of this waiver, we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider. Cf. McIntosh, 833 F.3d at 1177–78 (holding that the appropriations rider prohibits the Department of Justice from using appropriated funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws). “We will enforce a valid waiver even if the claims that could have been made [through a collateral attack] absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462–63 (9th Cir. 2015) (internal quotation marks, alterations, and emphasis omitted).

I would be shocked to see the Ninth Circuit or any other court ultimately interpret the DOJ appropriations rider to require the release of any federal prisoners, but the argument has enough technical textual legitimacy to surely justify its pursuit by persons federally imprisoned for state-legal medical marijuana activity. And, for various updates on state activities, I continue to try to keep up with major legal developments and other notable stories at Marijuana Law, Policy and Reform as evidenced by some of these recent posts:

May 18, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, May 17, 2017

Terrific effort to sort out "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?"

In this post earlier this week, I talked through the challenge of figuring out the import and impact of the new Sessions Memo on federal charging/sentencing by stressing  uncertainty concerning the impact of various charging memos released by former Attorney General Eric Holder.   Jacob Sullum is carrying forward this effort quite effectively this morning in this terrific new Reason posting asking "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?".   Here are highlights:

For critics of the war on drugs and supporters of sentencing reform, the policy shift that Attorney General Jeff Sessions announced last Friday is definitely a change for the worse. But it's not clear exactly how bad the consequences will be, partly because the impact of the policy he reversed, which was aimed at shielding low-level, nonviolent drug offenders from mandatory minimum sentences, is hard to pin down.

Sessions rescinded a 2013 memo in which Attorney General Eric Holder encouraged federal prosecutors to refrain from specifying the amount of drugs in cases involving nonviolent defendants without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Since mandatory minimums are tied to drug weight, omitting that detail avoids triggering them.

Numbers that the Justice Department cited last year suggest Holder's directive, which was the heart of his Smart on Crime Initiative, had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to data from the U.S. Sentencing Commission (USSC), the share of federal drug offenders subject to mandatory minimums has fallen steadily since Holder's memo, from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. If the percentage had remained the same, more than 10,000 additional drug offenders would have fallen into that category during this period.

"The promise of Smart on Crime is showing impressive results," Deputy Attorney General Sally Q. Yates said last year, citing the USSC numbers through fiscal year 2015. "Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders."

Counterintuitively, however, the defendants whom the USSC describes as "drug offenders receiving mandatory minimums" include drug offenders who did not actually receive mandatory minimums. Many of them were convicted under provisions that call for mandatory minimums yet escaped those penalties because they offered "substantial assistance" or qualified for the statutory "safety valve."

Paul Hofer, a policy analyst at Federal Public and Community Defenders, took those other forms of relief into account in a 2013 estimate of the Holder memo's possible impact.... Hofer's analysis suggests that the vast majority of drug offenders who seem to have benefited from the 2013 memo—thousands each year—did not actually receive shorter sentences as a result of the policy change.

Then again, the benefits of Holder's memo may extend beyond the federal defendants who avoided mandatory minimums. By encouraging prosecutors to focus their efforts on the most serious drug offenders, Holder may have indirectly reduced punishment by allowing some people to avoid federal charges altogether. That instruction may help explain why the total number of federal drug cases fell from 25,000 in fiscal year 2013 to 21,387 in fiscal year 2016, a 14 percent drop.

As Molly Gill, director of federal legislative affairs at Families Against Mandatory Minimums, points out, there is some evidence that federal prosecutors did try to focus on the most serious cases: During the same period, the share of defendants benefiting from the safety valve (which excludes high-level and violent offenders) fell from 24 percent to 13 percent. "With the directive not to slam low-level drug defendants," says University of California at Irvine criminologist Mona Lynch, "there was likely some shift toward bringing more serious cases and simply passing on smaller, street-dealing type of cases."

Sessions is now telling federal prosecutors to pursue the most serious provable charges against drug offenders (and other federal defendants) unless they believe an exception to that policy is warranted, in which case they have to seek permission from their supervisors and justify the decision in writing. Although Sessions argues that the new default rule will produce more uniform results, Lynch thinks it could have the opposite effect.

"The big question is whether he has the power to roll back time and change the prevailing legal culture that has tempered the 'drug war' mentality of the 1990s in many federal jurisdictions," says Lynch, who studied the behavior of federal prosecutors for her 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court. "Even under a more stringent set of charging policies…U.S. attorneys have considerable discretion as to what cases to bring….This policy may only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era. This would result in even more geographic disparity in federal justice outcomes, a longstanding concern of Congress and of the U.S. Sentencing Commission."

Prior recent related posts: 

May 17, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, May 15, 2017

Reviewing some historical data on the federal prison population, total sentences imposed, and drug cases

Some of the copious commentary critical of the new Sessions Memo complains that he is "bringing back" the War on Drugs.  See, for example, Salon here, "Jeff Sessions is bringing back the drug war — and making it worse"; New York here, "Sessions Takes First Big Step Toward Bringing Back the War on Drugs."  I find this charge a bit curious because I do not think the drug war or its footprint on human lives ever really went away notwithstanding some recent efforts at the federal and state level to temper a bit its reach and impact. 

In an effort to try to see if the federal drug war at some point went away, and also driven by a desire to try to gauge the impact of federal charging policies before the Sessions Memo (as discussed here), I decided it might be useful to take a dive into US Sentencing Commission data over the past two decades to see what we could see.  The USSC has great yearly data assembled here going back to 1996, and basic federal prison population numbers are accessible here going back all the way to 1980.  Though my weak empirical skills and this imperfect blogging space will surely limit my ability to tell detailed data stories here effectively, I hope a few posts reviewing federal case processing and sentencing basics might be of some use and interest.  Here I will start with just the most basic of basics, historical data on the federal prison population, total sentences imposed, and drug cases:

Year        Federal Prison Population         Federal Sentences Imposed         Drug Sentences Imposed

1996                105,443                                        42,436                                    17,267

1998                122,316                                        50,754                                    20,368

2000                145,125                                        59,846                                    23,542

2002                163,436                                        64,366                                    25,920        

2004                179,895                                        70,068                                    24,532

2006                192,584                                        72,585                                    26,122

2008                201,668                                        76,478                                    25,500

2010                210,227                                        83,946                                    24,713

2012                218,687                                        84,173                                    25,712

2014                214,149                                        75,836                                    22,193

2016                192,170                                        67,742                                    19,945

May 15, 2017 in Data on sentencing, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, May 11, 2017

Notable comments from AG Sessions about the opioid crisis and combatting drug problems

This press release from the Department of Justice provides the text of remarks delivered today by Attorney General Jeff Sessions at the "DEA360 Heroin and Opioid Response Summit" in Charleston, WV. I recommend the speech in full, even though some comments are familiar, and here are a few excerpts that caught my attention:

People in Washington, D.C., use the word "crisis" to describe all kinds of problems.  But this epidemic of opioid and prescription drug abuse is a true crisis.  It is ravaging our communities, bringing crime and violence to our streets, and destroying the lives of too many Americans....

Let’s start by looking at the scope of the problem.  In 2015, more than 52,000 Americans died from a drug overdose.  That means our country is losing the equivalent of a major league baseball stadium full of people every year to overdoses.  That is simply unacceptable. 

Nearly two-thirds of those deaths were from opioids — that includes heroin as well as prescription drugs such as oxycodone, hydrocodone, codeine and morphine.   Every day, 91 Americans die from an opioid overdose.  And each year, more Americans are dying from drug overdoses than from car crashes.  

What’s terrifying is that these numbers may well understate the current problem, due to the recent rise of the synthetic opioid fentanyl, which is vastly more potent than heroin.  Drug traffickers are now mixing fentanyl with other drugs, resulting in a truly deadly concoction. In just one year, largely as a result of fentanyl, overdose deaths involving synthetic opioids rose an astonishing 73 percent.  Let me repeat that, 73 percent more overdose deaths.

But this plague not only brings death, but a whole parade of horribles. The number of American babies born with a drug withdrawal symptom has quadrupled over the past 15 years.  Here in West Virginia, the situation is so bad that in some hospitals, one out of every 10 babies is born dependent on opioids....

This wave of opioid and heroin abuse also represents a crisis for law enforcement.   We know drugs and crime go hand-in-hand.   Drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.

The opioid and heroin epidemic is a contributor to the recent surge of violent crime in America.   Transnational drug cartels are working with street gangs to traffic heroin that is both cheaper and stronger than ever.  As the market for this heroin expands, these gangs fight for territory and new customers — and innocent people get caught in the crossfire.     

Drug abusers miss work, and when they do work, they don’t work well.  According to one estimate, American employers are losing $10 billion dollars a year from absenteeism and lost productivity due to opioid abuse.

Any way you look at it, this drug abuse epidemic is a multi-faced and massive crisis.  It demands an all-hands-on-deck response — from government, law enforcement, health care providers, teachers, community leaders and parents.  All of us must do our part to fight the scourge of drugs.   

As I mentioned before, we have three essential tools in this fight:  enforcement, treatment and prevention.  At the Department of Justice, our principal concern is law enforcement.  Strong enforcement is crucial to effective drug abuse prevention and treatment.

Many people say, "We can’t arrest our way out of this problem."  But no one denies we need good prevention and treatment programs.  What we must recognize is that strong law enforcement efforts are also essential.   Criminal enforcement is crucial to stopping the violent transnational cartels that smuggle drugs across our borders, and the thugs and gangs who bring this poison into our communities....

The DEA has developed what they call their 360 Strategy, and deployed it to six pilot cities, including here in Charleston.  One part of the 360 Strategy is coordinated law enforcement actions against drug cartels and traffickers.   DEA’s field divisions work closely with task force partners in federal, state, and local law enforcement to identify, target and prosecute the biggest drug traffickers.  

We are also targeting links between the cartels and drug trafficking networks across our country, including violent street gangs. Another part of DEA’s 360 Strategy is diversion control.  A lot of drug abuse happens because legitimate controlled substances are diverted from their lawful purposes.... 

We are also targeting and prosecuting dishonest medical providers who violate their oaths by running "pill mills" or otherwise diverting prescription drugs from legitimate uses.  The DEA’s Tactical Diversion Squads, including one here in Charleston, do outstanding work on this front....

The goal of all our enforcement efforts is to take back our neighborhoods from drug traffickers and criminals, and give these communities breathing room.   That allows us to deploy the other tools we have to fight drug abuse:  treatment and prevention....

The best thing we can do is to keep people from ever abusing drugs in the first place.  Our nation must once again send a clear message:  illegal drug use is dangerous and deadly.  We know for a fact it destroys lives — just look around you.

Education does work.  We won’t end this epidemic in a week, or a month, or a year.  This will be a huge undertaking, both here in West Virginia and across our great country.  We must use all the tools we have: criminal enforcement, treatment and prevention programs.  

May 11, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, May 09, 2017

New buzz about AG Sessions considering new tougher charging guidance for federal prosecutors

I had the great honor and privilege tp speak earlier today to a terrific group of judges, along with a terrific lawyer from the US Sentencing Commissions, about federal sentencing trends and developments.  We started the discussion with a particular focus on drug cases, and I mentioned that I was expecting to see new, probably tougher, charging guidelines emerging from the Department of Justice under its new leadership.  This new Washington Post article, headlined "Sessions weighs return to harsher punishments for low-level drug crimes," suggests my informed speculation here may quite soon be reality. Here are excerpts from the piece:

Attorney General Jeff Sessions is reviewing policy changes set in place by the Obama administration that eliminated harsh punishments for low-level drug crimes and could direct federal prosecutors to again charge drug offenders with crimes carrying the most severe penalties, according to U.S. officials.

The change, if adopted, would overturn a memo by then-Attorney General Eric H. Holder Jr. that instructed prosecutors to avoid charging low-level defendants with drug offenses that would trigger severe mandatory minimum sentences. Only defendants who met certain criteria, such as not belonging to a large-scale drug trafficking organization, a gang or a cartel, qualified for the lesser charges under Holder’s instructions.

If new charging instructions are implemented, it would mark the first significant move by the Trump administration to bring back the drug war’s toughest practices — methods that had fallen out of favor in recent years as critics pointed to damaging effects of mass incarceration.

“As the Attorney General has consistently said, we are reviewing all Department of Justice policies to focus on keeping Americans safe and will be issuing further guidance and support to our prosecutors executing this priority — including an updated memorandum on charging for all criminal cases,” Ian Prior, a department spokesman, in a statement to The Washington Post.

Sessions has recently peppered his speeches to law enforcement groups throughout the country with tough-on-crime rhetoric and urged Justice Department lawyers to prosecute more drug and gun cases.

The attorney general is considering having his prosecutors bring the most severe charges against drug traffickers, whether they are low-level defendants or not, according to officials who spoke on the condition of anonymity to discuss internal deliberations. Sessions also may allow prosecutors to use more “enhancements” to make sentences even longer. Under what’s referred to as “Section 851” of the Controlled Substances Act, defendants charged with a federal drug, firearm or immigration crime may face enhancements if they have previously been convicted of a felony drug offense.

Holder told his prosecutors four years ago that they should stop using enhancements except in certain cases — such as when the defendant was involved in the use or threat of violence — in an effort, he said, to make punishments more fairly fit the crime.

Holder’s changes came in August 2013 during a growing push among lawmakers and civil rights groups to roll back the strict charging and sentencing policies created in the 1980s and 1990s at the height of the war on drugs. Sen. Rand Paul (R-Ky.) was one of the sponsors of bipartisan criminal-justice legislation that would have reduced some of the mandatory minimum sentences for gun and drug crimes — a bill that Sessions opposed and helped derail....

The Holder memo was also supported by many of the U.S. attorneys in the Obama administration. But some prosecutors across the country fought Holder’s broad effort to eliminate mandatory minimum prison sentences for certain drug offenders, saying it damaged their ability to build cases from the ground up against major drug organizations.

As I noted in this post a few months ago, the new Attorney General has already issued directives that lead me to suspect that we would be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013. Indeed, I have been a bit surprised we have not yet seen new directives from AG Sessions yet in this arena, and this new Post article leads me to suspect a Sessions Memo could be coming out any day now.

UPDATE:  This New York Times article, headlined "Sessions to Toughen Rules on Prosecuting Drug Crimes," suggests that new charging guidance from AG Sessions could be released any day now.  Here is a key paragraph from the article that provides additional context for this important coming federal criminal justice development:

Current and former government officials have said for weeks that Mr. Sessions’s new policy could come at any time. They said Tuesday that they expected to see it finalized shortly, and Mr. Sessions himself has foreshadowed the announcement this year, calling for a return to tougher federal charging policies in speeches and issuing memos telling prosecutors to anticipate policy shifts.

May 9, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, May 05, 2017

Might Prez Trump conduct something of a federal "drug war" retreat through major budget cuts?

The question in the title of this post is prompted by this notable new CBS News article headlined "Trump administration proposes massive cuts to Drug Czar office."  Here are the details:

The Trump administration is looking to slash the White House Office of National Drug Control Policy (ONDCP) budget by nearly 95 percent, according to a memo obtained by CBS News.  The Office of Management and Budget (OMB) has proposed major ONDCP budget cuts for fiscal year 2018 that would cut 33 employees, nearly half the office staff, along with intelligence, research and budget functions at the agency, as well as the Model State Drug Laws and Drug Court grant programs....

The document also zeroes out funding to a number of grant programs including the High Intensity Drug Trafficking Areas (HIDTA) program and the Drug-free Communities Support Program.  These grants are "duplicative of other efforts across the Federal government and supplant State and local responsibilities," the memo states.

HIDTA serves as a catalyst for coordination among federal state and local enforcement entities, and funds task forces in 49 states across the country.  It is considered a vital tool used by law enforcement agencies to go after very high profile drug dealers and conduct in-depth interagency investigations.  The drug free communities support program is the nation's largest drug prevention program and funds 5,000 local anti-drug community coalitions across the country.  This program has also enjoyed broad bipartisan support.

President Donald Trump signed an Executive Order last month to create a presidential commission to tackle the national opioid [crisis], chaired by New Jersey Governor Chris Christie.  The Order stated that the ONDCP would be providing support for the Commission.  "I have been encouraged by the Administration's commitment to addressing the opioid epidemic, and the President's personal engagement on the issue, both during the campaign and since he was sworn into office," the ONDCP's Acting Director, Richard Baum, wrote in an office-wide email. "However, since OMB's proposed cuts are also at odds with the fact that the President has tasked us with supporting his Commission on Combatting drug Addiction and the Opioid Crisis."

"These drastic proposed cuts are frankly heartbreaking, and if carried out, would cause us to lose many good people who contribute greatly to ONDCP's mission and core activities," Baum wrote.

The staff was notified of the cuts Friday after Baum and top aides were notified of the draconian cuts last Thursday.  According to a source familiar with the discussions, Baum has been in close contact with Jared Kushner, who heads up the White House Office of American Innovation.  Baum had hoped to convince the Office of American Innovation that the ONDCP is an essential tool in combatting the opioid epidemic. The discussions did not go as planned.

"The budget process is a complex one with many moving parts," The White House said in a statement to CBS. "It would be premature for us to comment - or anyone to report - on any aspect of this ever-changing, internal discussion before the publication of the document. The President and his cabinet are working collaboratively to create a leaner, more efficient government that does more with less of tax payers' hard-earned dollars."

Due in part of some of the rhetoric used by both Prez Trump and Attorney General Sessions, there has been much talk and consternation about the prospect of the Trump Administration ramping up the federal drug war. But if these significant budget cuts become a reality, it is quite possible that the Trump Administration would be functionally doing a lot more to pull back on the drug war in his first Term than did President Obama during his first Term.

UPDATE: This new CBS News article, headlined "White House dismisses concerns over steep potential cuts to 'Drug Czar' office," includes new statements from White House officials suggesting any ONDCP cuts would not signal a drug war retreat as well as some informed reaction to the budget cutting talk:

A senior administration official suggested that if the White House decided to strip ONDCP of its agency mandate to coordinate collaboration between federal and local law enforcement and public health organizations, transitioning it into an office like the National Security Council or National Economic Council. The official said cuts would "by no means signal the commitment to winning the war on drugs is lessened." The senior administration official pointed to dozens of drug programs across many federal agencies as evidence that the White House is committed to anti-drug efforts, even if the ONDCP loses its ability to issue grants.

But Rafael Lemaitre, a former top spokesman for the ONDCP, countered that the reason the ONDCP was created in the first place was to coordinate these programs into one comprehensive strategy for the president. "Creating chaos at ONDCP or eliminating the agency will mean that each of the bureaucrats who run each those long list of programs and are spread out across government will have no single point of contact or direction to follow," Lemaitre said. "Efforts will be duplicated. Presidential priorities won't be followed. Ineffective programs will continue."...

Scores of former government officials, doctors, community based organizations, law enforcement officials and officials at drug treatment and prevention programs agree. In a letter to senior White House adviser Reed Cordish, dozens called on the White House to maintain ONDCP's funding and strong national influence.

"As we have written before, ONDCP brings essential expertise to the table on complex drug issues, expertise that would otherwise be missing or dispersed across multiple agencies," the letter states. "ONDCP holds all federal, state, and local agencies accountable for achieving specific goals to reduce drug trafficking, use, and other consequences."

Kevin Sabet, the head of Smart Approaches to Marijuana and a three-time ONDCP adviser who distributed the letter, did not mince words. "To slash anti-drug finding during this opiate and marijuana crisis is exactly the wrong move at the wrong time," he said. 

May 5, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (16)

Stories of severe federal sentences and the judges forced to impose them

Two different news sources this morning have these two equally interesting pieces about federal sentencing practices and federal judges struggling with their sentencing responsibilities:

May 5, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, May 02, 2017

Florida legislative debate provides interesting sign of the modern mandatory-minimum drug sentencing times

This new local article from Florida, headlined "Steube bill aimed at curbing overdoses sparks drug sentencing debate," highlights how legislators even in traditionally "tough" states are starting to have much more nuanced discussions about mandatory minimum sentencing proposals. Here are the interesting details:

Legislation aimed at tackling the opioid epidemic in Florida sparked a debate about mandatory minimum drug sentences in the state Senate Tuesday, prompting an amendment that put the measure sponsored by two Southwest Florida lawmakers in jeopardy.

Rep. Jim Boyd, R-Bradenton, and Sen. Greg Steube, R-Sarasota, have been pushing a bill that would establish penalties for the possession of large amounts of fentanyl — a powerful synthetic opioid often laced with heroin — and its many derivatives.  Manatee and Sarasota counties were the top two communities in the state for fentanyl-related deaths per capita in 2015, according to the Florida Medical Examiners Commission.  Fentanyl was responsible for 911 deaths across Florida in 2015, and continues to be a major health crisis across the state.

But mandatory minimum drug sentences have come under increasing scrutiny nationwide and there is bipartisan concern in the Florida Legislature about what many lawmakers view as overly harsh sentencing laws.  The fentanyl bill — with the mandatory minimums included — already has passed the House, but both Republicans and Democrats in the Senate took aim at the sentencing aspect of the bill Tuesday.

The Senate amended the bill — over Steube’s objections — to strip out the mandatory minimums, which included at least three years in jail for possession of between four and 14 grams, at least 15 years for possession of between 14 and 28 grams and at least 25 years for possession of more than 28 grams. That amendment may kill the bill. Boyd does not seem inclined to push for it now, saying in a text message: “I don’t believe the bill deals with this deadly opioid problem” as amended.

Boyd said if the House takes up the Senate bill he would seek to strip off the sentencing amendment. But that likely would keep it from clearing the Senate. Steube noted that the amended legislation still makes possession of large amounts of fentanyl a crime for the first time.  “We’re still taking — in my opinion — a good step in the right direction,” Steube said of the amended bill.

The Senate debate showed the appetite within the chamber for criminal justice reform, an issue that has been championed by Republican Senate President Joe Negron.

Some lawmakers argued that any reforms tackling mandatory minimum sentences should be done in a comprehensive way and that the fentanyl bill was not the right place to start the discussion. “I have some concerns about how we have these bills come along and we put minimum mandatories on them every year,” said Sen. Rob Bradley, R-Fleming Island. But Bradley added that the Senate needs to have a “global discussion” about the issue and argued against the amendment.

Sen. Jeff Brandes, R-St. Petersburg, countered that “it’s the right conversation to have because minimum mandatories don’t work in my opinion.”  Judges need to have discretion over when to crack down and when to show leniency added Sen. David Simmons, R-Altamonte Springs. Tough drug sentencing laws can destroy lives, he said.

Steube said he is sympathetic to concerns about mandatory minimums but believes reform efforts should start with a drug such as marijuana that is not deadly.  “I certainly didn’t want this bill to be the bill that’s talked about,” he said.

The amendment was proposed by Sen. Randolph Bracy, one of the few Democrats in the chamber to chair a committee.  The Orlando lawmaker was not expecting the amendment to generate such a robust debate.  He hopes to address the issue of mandatory minimums in a broad way in his committee next year.

May 2, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Highlighting prosecutorial efforts to prevent rolling back of mandatory minimums

This new Slate article highlights the state of debate over mandatory minimums in various states.  The piece is headlined "Mandatory Minimums Don’t Make Us Safer: Many states are realizing this and changing the rules.  But district attorneys seem intent on blocking the progress." Here is how it gets started:

Mandatory minimum sentences are among the most lasting and damaging result of previous eras of draconian drug policy.  They include, for example, laws requiring at least two years in prison for all drug crimes within 1,000 feet of a school.  Enforcement can lead to irrational outcomes, locking people up for very minor crimes and stripping away discretion from judges.

Moreover, research has shown that tough-on-crime policies like mandatory minimums have not been effective at reducing crime.  Instead, mandatory minimum laws have been shown to cause expanded racial disparities in sentencing.  States that shifted away from minimums have seen lower prison populations and bigger cost savings. And all 17 states that decreased their prison populations over the last decade saw a reduction in crime rates.

Many states are leading the charge in doing away with mandatory minimum laws.  From Massachusetts to Iowa to Florida, momentum has grown in state legislatures this year to rewrite laws that guarantee long sentences for low-level offenders.  The reform has, in most places, won broad bipartisan support, from elected officials, judges, advocacy groups on the right and the left, and law enforcement officials.

One of the only major groups to consistently oppose reforming mandatory minimums is district attorneys.  In almost every state considering reform, local DAs and DA associations have lined up against it, arguing that reducing mandatory sentences would lead to an upswing in drug abuse.  No matter that this fearmongering is likely untrue.  The national scare over opioid use and overdose is fueling the district attorneys’ campaign for tougher drug laws.

The district attorneys claim they need the threat of a long, mandatory sentence as leverage to cajole defendants into pleading guilty to lower crimes and that mandatory minimums ensure a measure of consistency in sentencing.

Boil away this rhetoric and you get to the heart of the argument: “It’s all about power,” said Kevin Ring, the president of the advocacy group Families Against Mandatory Minimums.  “Mandatory minimums have given DAs — who already had unreviewable charging authority — the ability to pick sentences and cut judges out of the picture.”

The article goes on the discuss developments and debates over mandatory minimums in Massachusetts, Iowa, Nebraska, Florida and Pennsylvania.  And, as regular readers know, this dynamic has also been on full display in the federal system in recent years where various current and former prosecutors (including the current Attorney General) have been the loudest voices opposing proposed federal statutory reforms seeking to reduce the severity of mandatory minimum sentences for certain drug offenses.

May 2, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Thursday, April 27, 2017

"Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act"

The title of this post is the title of this notable new article by David Bjerk just published by the Journal of Empirical Studies. Here is the abstract:

The Fair Sentencing Act of 2010 (FSA) affected the U.S. federal mandatory minimum sentencing laws for crack cocaine offenders, and represented the first congressional reform of sentencing laws in over 20 years.  A primary goal of this legislation was to lessen the harshness of sentences for crack cocaine offenders and decrease the sentencing gap between crack defendants and powder cocaine defendants.  While the mean sentence length for crack offenders fell following the implementation of the FSA, these changes appear to primarily reflect the continuation of ongoing sentencing trends that were initiated by a variety of noncongressional reforms to federal sentencing policy that commenced around 2007.  However, the FSA appears to have been helpful in allowing these trends to continue past 2010.

April 27, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (0)

Wednesday, April 26, 2017

Noting reasons for the recent drop in the federal prison population mitigating overcrowding at BOP facilities

The US Courts yesterday posted this notable short piece under the heading "Policy Shifts Reduce Federal Prison Population." The piece details the significant decline in the federal prison population in the last few years and also highlights reasons for it:

A decline in the number of federal prosecutions and in the severity of sentences for drug-related crime in recent years has resulted in a significant drop in the federal prison population, according to statistics from the Judiciary, the U.S. Sentencing Commission (USSC), and the Bureau of Prisons (BOP).

The federal prison population fell from a peak of nearly 219,300 inmates in 2013 to 188,800 in April 2017, a nearly 14 percent reduction, according to BOP statistics.  The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking and other drug-related offenses in recent years.  It also has mitigated overcrowding at BOP facilities -- the inmate population, once at 37 percent overcapacity, is now at 13 percent overcapacity.

Changes in sentencing guidelines are a major contributor to the inmate population decline.  In 2011, the USSC implemented lower crack cocaine penalties in line with the Fair Sentencing Act passed by Congress the year before.  The new guidelines were made retroactive, which resulted in the release of prisoners who had already served their time under the new guidelines.  Because drug crimes account for nearly a third of all criminal filings in federal courts, changes in drug sentences have a big impact on the federal prison population....  In 2014, the commission took the step of cutting the length of sentences for all drug trafficking offenses, not just crack cocaine.  Sentences were reduced by about 25 percent, and the changes were also made retroactive....

Other factors contributing to the decreasing prisoner population:

• Federal prosecutions for all crimes have declined over the past five years.  Criminal cases were brought against 77,357 defendants in fiscal year 2016, the lowest total since fiscal 1998, according to the Administrative Office of the U.S. Courts.  Last year, 67,742 defendants were convicted and sentenced, compared to 86,201 in 2011, the USSC reports.  However, the trend could slow or reverse in the coming months as new Attorney General Jeff Sessions and the Trump administration step up prosecutions of drug-related crime and immigration offenses.

• Two Supreme Court rulings since 2015 resulted in sentence reductions for about 1,200 inmates.  The court in Johnson v. United States found that one of the definitions of a violent felony under the Armed Career Criminal Act was unconstitutionally vague.  A subsequent high court decision made the Johnson ruling retroactive, which prompted thousands of prisoners to petition for review of their cases.  Many of those cases are still under review by the lower courts.

April 26, 2017 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Sunday, April 23, 2017

"I used to support legalizing all drugs. Then the opioid epidemic happened."

The title of this post is the headline of this lengthy Vox commentary authored by German Lopez.  I recommend the piece in full even though I take issue with some of its particulars.  Here are some extended excerpts:

In terms of overdoses, the opioid epidemic is deadlier than any other drug crisis in US history — more than crack, meth, and any other heroin epidemic. In total, more than 560,000 people in the US died to drug overdoses between 1999 and 2015 (the latest year of data available) — a death toll larger than the entire population of Atlanta. And while many of these deaths are now linked to illicit drugs like heroin and fentanyl, the source of the epidemic — what got people started on a chain to harder drugs — was opioid painkillers, and legal painkillers are still linked to most opioid overdose deaths.

This was exactly what anti-legalization activists have warned about: Companies got a hold of a dangerous, addictive product, marketed it irresponsibly, and lobbied for lax rules. The government’s regulatory response floundered. The government even worked with the drug companies in some cases — under the influence of lobbying, campaign donations, and drugmaker-funded advocacy groups. And people got addicted and died.

Looking at this crisis, it slowly but surely dawned on me: Maybe full legalization isn’t the right answer to the war on drugs. Maybe the US just can’t handle regulating these potentially deadly substances in a legal environment. Maybe some form of prohibition — albeit a less stringent kind than what we have today — is the way to go.

I should be clear: I am talking about the legalization of harder drugs, so none of this applies to marijuana legalization. While there are real concerns with pot dependence and people doing stupid things on weed, my perspective is that it’s such a relatively harmless drug, according to the best scientific evidence, that the government can afford to screw it up. Especially since the alternative is a prohibition regime that leads to hundreds of thousands of needless arrests in the US each year and fosters violence as traffickers fight over turf or settle other beefs related to the drug trade.

But with the harder drugs, there’s a lot of room to mess up — as the opioid epidemic demonstrates....

Consider the US statistics: In 2015, drug overdoses killed more than 52,000 people, and more than 33,000 of those deaths were linked to opioids. That’s much more than the number of people who died to homicides: nearly 18,000 in 2015, only some of which were linked to violence in the war on drugs. Based on these figures, the legal drug led to a crisis that is killing way more people than black market–related violence possibly could.

while it is true that there are other metrics for suffering under prohibition (such as arrests), the same also applies for the opioid epidemic: There are a lot of people suffering from addiction, along with their friends, family, and broader community, yet haven’t overdosed and may never die of an overdose.

So while it’s hard to draw a perfect comparison in terms of overall suffering, the opioid epidemic, at the very least, seems to be much deadlier than violence related to drug prohibition is in the US.

Still, it’s hard to deny that the current model of prohibition has serious costs. Just like lenient regulation through legalization is dangerous, so too is excessive regulation — via punishment — through prohibition. There’s really little argument that America has been excessive in its punishment: the harsh mandatory minimum sentences, the three-strikes laws that can get someone life for drugs, and the ridiculous probation and parole rules that can get someone thrown back into prison for little more than possession. Not only can these measures cause a lot of human misery, but they also seem to be totally ineffective for actually deterring drug use.

The research is clear on this point: Severity of punishment does little to nothing to deter crime. In particular, a 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance abuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.

As drug policy experts emphasized in a piece I reported out in 2016, there’s a lot of room for the US to relax its severity of punishment before legalization. One possibility is essentially the Portuguese model: Drugs are decriminalized for personal use, so you can’t be punished with prison time merely for possessing or using illegal substances like cocaine and heroin. But the drugs remain illegal for big companies to produce and sell for profit — effectively stopping the kind of commercialization that’s spurred the tobacco, alcohol, and opioid epidemics....

This milder form of prohibition isn’t a perfect solution. I don’t think there is a perfect solution. As with many policy debates, this is really about picking between a bunch of unsatisfactory options. Faced with an excessively harsh criminal justice system and a legal industry that carelessly causes drug epidemics, I have come down somewhere in the middle of these two extremes.

As Keith Humphreys, a drug policy expert at Stanford University, once told me, “There's always choices. There is no framework available in which there's not harm somehow. We’ve got freedom, pleasure, health, crime, and public safety. You can push on one and two of those — maybe even three with different drugs — but you can’t get rid of all of them. You have to pay the piper somewhere.” After witnessing the opioid epidemic firsthand, I have learned this lesson all too well — and I am genuinely scared of how America would pay for full legalization.;

April 23, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5)

Tuesday, April 18, 2017

US Sentencing Commission conducting public hearing with testimony on alternatives to incarceration and synthetic drugs

As detailed on this USSC webpage, the United States Sentencing Commission in now conducting a public hearing through early this afternoon. As the page details, "the purpose of the public hearing is for the Commission to receive testimony on alternatives to incarceration programs in the federal court system. The Commission will also receive testimony from experts on synthetic drugs, including their chemical structure, pharmacological effects, trafficking patterns, and community impact."  The hearing is being streamed live here.

This webpage with the USSC hearing agenda has links to written testimony from all the scheduled witnesses, and this testimony provide a wealth of information and research about alternatives to incarceration and synthetic drugs.

April 18, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, April 13, 2017

"Four Decades and Counting: The Continued Failure of the War on Drugs"

The title of this post is the title of this new Policy Analysis from the Cato Institute authored by Christopher Coyne and Abigail Hall. Here is the 28-page document's Executive Summary:

Private individuals and policymakers often utilize prohibition as a means of controlling the sale, manufacture, and consumption of particular goods.  While the Eighteenth Amendment, which was passed and subsequently repealed in the early 20th century, is often regarded as the first major prohibition in the United States, it certainly was not the last.  The War on Drugs, begun under President Richard Nixon, continues to utilize policies of prohibition to achieve a variety of objectives.

Proponents of drug prohibition claim that such policies reduce drug-related crime, decrease drug-related disease and overdose, and are an effective means of disrupting and dismantling organized criminal enterprises.

We analyze the theoretical underpinnings of these claims, using tools and insights from economics, and explore the economics of prohibition and the veracity of proponent claims by analyzing data on overdose deaths, crime, and cartels.  Moreover, we offer additional insights through an analysis of U.S. international drug policy utilizing data from U.S. drug policy in Afghanistan.  While others have examined the effect of prohibition on domestic outcomes, few have asked how these programs impact foreign policy outcomes.

We conclude 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. Internationally, we find that prohibition not only fails in its own right, but also actively undermines the goals of the Global War on Terror.

April 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4)

Sunday, April 09, 2017

Reviewing the "tough-and-tougher" sentencing perspectives of those now leading the Justice Department

The Washington Post has this extended new article reviewing a lot of the old tough-on-crime comments by AG Jeff Sessions and his new right-hand man, Steve Cook.  The article is headlined "How Jeff Sessions wants to bring back the war on drugs," and here is how it gets started (with one important phrase emphasized at the end):

When the Obama administration launched a sweeping policy to reduce harsh prison sentences for nonviolent drug offenders, rave reviews came from across the political spectrum. Civil rights groups and the Koch brothers praised Obama for his efforts, saying he was making the criminal justice system more humane.

But there was one person who watched these developments with some horror. Steven H. Cook, a former street cop who became a federal prosecutor based in Knoxville, Tenn., saw nothing wrong with how the system worked — not the life sentences for drug charges, not the huge growth of the prison population.  And he went everywhere — Bill O’Reilly’s show on Fox News, congressional hearings, public panels — to spread a different gospel. “The federal criminal justice system simply is not broken. In fact, it’s working exactly as designed,” Cook said at a criminal justice panel at The Washington Post last year.

The Obama administration largely ignored Cook, who was then president of the National Association of Assistant U.S. Attorneys.  But he won’t be overlooked anymore. Attorney General Jeff Sessions has brought Cook into his inner circle at the Justice Department, appointing him to be one of his top lieutenants to help undo the criminal justice policies of Obama and former attorney general Eric H. Holder Jr.  As Sessions has traveled to different cities to preach his tough-on-crime philosophy, Cook has been at his side.

Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed. Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.  “Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.  “They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

But Cook, whose views are supported by other federal prosecutors, sees himself as a dedicated assistant U.S. attorney who for years has tried to protect neighborhoods ravaged by crime.  He has called FAMM and organizations like it “anti-law enforcement groups.”  

The records of Cook and Sessions show that while others have grown eager in recent years to rework the criminal justice system, they have repeatedly fought to keep its toughest edges, including winning a battle in Congress last year to defeat a reform bill.  “If hard-line means that my focus is on protecting communities from violent felons and drug traffickers, then I’m guilty,” Cook said in a recent interview with The Post.  “I don’t think that’s hard-line. I think that’s exactly what the American people expect of their Department of Justice.”

The phrase I have stressed above is the phrase that ultimately matters most for the foreseeable future of the federal criminal justice system.  Though the Attorney General and others senior DOJ officials can and will define and shape the basic policies for federal charging and sentencing, it is local federal prosecutors around the nation who really determine how these policies get implemented and who, collectively, have the greatest impact on prosecutorial and punishment practices.  And I surmise that a whole lot of federal prosecutors — not all, but many and perhaps most — embrace the "tough-on-crime" philosophy that AG Sessions espouses more than the "smart-on-crime" mantra that former AG Holder eventually espoused. 

April 9, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Wednesday, March 15, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, March 05, 2017

Deep dive into litigation over Chicago “Stash House Stings”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, February 25, 2017

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

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

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

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

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

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

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

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

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

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

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