Thursday, November 16, 2017

Notable crime fighting comments by Deputy AG Rosenstein in Chicago

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 13, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 08, 2017

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

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

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

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

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

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

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

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

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

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

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

Saturday, November 04, 2017

Some more diverse reading about the opioid crisis

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

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

Thursday, November 02, 2017

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

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

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

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

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

Here are some of the commission’s recommendations:

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

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

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

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

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

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

Wednesday, November 01, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death

One way the criminal justice system has been operationalized in response to the opioid crisis has been in the form of various state homicide charges — ranging from manslaughter to murder — being brought against persons who distribute drugs that result in the death of a drug user.  But this news report from North Carolina, headlined "How the ‘Len Bias Law’ of 1988 is being used to get longer prison sentences today," details how federal prosecutors can and will be able to pursue and secure more extreme sentences on drug offenders without ever bringing a homicide charge:

In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area.  The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year.  On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said.

Elton Wayne Walston was sentenced to 27 years in prison Monday after he was found guilty of distributing heroin that resulted in the death of a Wilson man in 2015. Walston, 66, was also found guilty of one count each of possession with intent to distribute heroin and illegally possessing a firearm and ammunition, along with four counts of distribution of heroin.

U.S. District Court Judge Louise W. Flanagan handed down the sentence, which was announced Tuesday in Raleigh by Robert J. Higdon Jr., the U.S. Attorney for the Eastern District of North Carolina. Walston was sentenced under the U.S. Anti-Drug Abuse Act of 1988, which carries a mandatory minimum prison term of 20 years and a maximum life sentence, along with a fine of up to $2 million, Higdon said. The statute is also known as the Len Bias Law, named for the first-team all-American basketball player at the University of Maryland who died of a cocaine overdose in June 1986, two days after he was the second overall pick by the Boston Celtics in the 1986 NBA draft.

A charge of second-degree murder might sound more imposing, but a conviction under the Len Bias Law usually results in a longer prison sentence, said Special Assistant U.S. Attorney Boz Zellinger.  Unlike in cases of second-degree murder, prosecutors do not have to prove malice, only that the victim’s death was caused by ingesting the drugs....

Higdon said the opioid crisis is a matter of life and death. The federal statute, he said, is needed to help combat a soaring epidemic that resulted in 60,000 drug overdoses across America last year.  He said 1,100 people died of overdoses last year in North Carolina, with three dying each day across the state.  “The death result law will be used more and more frequently,” Higdon said during a news conference Tuesday afternoon at the Terry Sanford Federal Building in downtown Raleigh.  “Our office, along with the entire U.S. Department of Justice, is determined to hold accountable those who deal these deadly drugs to enrich themselves. This prosecution is an example of that determination.”

U.S. Assistant Attorney Edward Gray said Walston first came to the attention of federal prosecutors after a member of a drug task force in Wilson reported a rise in heroin overdoses in the area.   In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area. The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year. On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said. The victim was at his brother’s home in Wilson....  Mollenahauer said she and her boyfriend left the home again at 1:30 a.m. When she returned at 5:30 a.m. she found the victim lying on the bathroom floor and not breathing. Emergency workers arrived and pronounced the man dead at 6:21 a.m., Higdon said.

Mollenhauer pleaded guilty to distribution of a quantity of heroin and aiding and abetting.  She was sentenced to nearly four years in prison.

Walston’s aunt, Emma Hardeman, a retired teacher who lives in Chicago, said Tuesday that her nephew is not the “big-time drug dealer” portrayed by federal prosecutors during his trial and at Tuesday’s press conference.  Hardeman said Walston was a former U.S. Air Force serviceman who suffered from post-traumatic stress syndrome after serving in Vietnam. She said her nephew was a longtime “functional addict” who sold drugs to support his own habit.

“He was a nickle-and-dime person,” she said. “He couldn’t even keep the lights and cable on. He didn’t have a $100,000 and a 100 pounds of heroin when they arrested him. He was a victim, too.” Hardeman said prosecutors should have held Mollenhauer more responsible.  She said Mollenhauer and her boyfriend returned to the victim’s home twice as he lay dying to take money from his wallet to buy more heroin.  Hardeman said family members have met with several federal lawyers and intend to appeal Walston’s sentence. “We are not going to lay down and let this die without fighting back,” she said. 

November 1, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Very excited for (not-so) new endeavor at OSU Moritz College of Law with creation of new Drug Enforcement and Policy Center (DEPC)

Images (1)Regular readers know that I often write about a range of drug enforcement and policy issues in this space and elsewhere, so I doubt anyone will be too surprised to read about this exciting new chapter for my work in this arena via this Ohio State University press release:

The Ohio State University Moritz College of Law announced today that it will establish the Drug Enforcement and Policy Center (DEPC) with funding provided by a $4.5 million gift from the Charles Koch Foundation.

The DEPC will support and promote interdisciplinary research, scholarship, education, community outreach and public engagement on the societal impacts surrounding legal reforms that prohibit or regulate the use and distribution of traditionally illicit drugs. Robert J. Watkins/Procter & Gamble Professor of Law Douglas A. Berman will lead the center, which will draw on institutional expertise from the Moritz College of Law, John Glenn College of Public Affairs, College of Social Work and across the university to examine the impact of modern drug laws, policies and enforcement on personal freedoms.

“The Drug Enforcement and Policy Center will serve as an objective, reputable voice in the national conversation relating to drug laws and enforcement,” said Moritz College of Law Dean Alan C. Michaels. “Doug is the perfect person to lead this interdisciplinary endeavor as we build on our strengths at the law school -- and comprehensively across Ohio State -- with research and outreach activities that will provide critical evidence to help inform policy decisions at the local, state and national levels.”

The DEPC will foster collaboration among Ohio State’s nationally recognized faculty in the areas of criminal law, public affairs, legislative reform, community well-being, economic development and social justice to explore how the “war on drugs” and other drug enforcement policies have affected Americans over the past half-century and possibilities for reform and improvement. It will also serve as an independent and reliable source for researchers, policymakers, the media and others interested in objective information about drug enforcement and reform, including rigorous examination of ongoing efforts by many states to replace blanket marijuana prohibition with various legalization and regulatory systems and rules.

“I am honored to serve as the first executive director of the Drug Enforcement and Policy Center as we begin important work across a breadth of critical topics at a time when leaders of all political beliefs are looking for reliable and objective evidence concerning the impact of modern drug policies and practices,” Berman said.

Cross-posted at Marijuana Law, Policy and Reform

November 1, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Sunday, October 29, 2017

Just a smattering of Fall highlights from Marijuana Law, Policy & Reform

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

October 29, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Thursday, October 26, 2017

Prez Trump to declare opioid epidemic a "public health" emergency

As reported in this piece from The Hill, "President Trump on Thursday will instruct the acting director of the Department of Health and Human Services to declare the opioid epidemic a public health emergency, White House officials said." Here is more about this notable news:

It's a move that won't free up additional federal funding and is a more narrow option recommended by the president's opioid commission.  The announcement has been months in the making and avoids declaring a more sweeping national emergency under the Stafford Act, which was one option the administration's opioid commission had previously recommended.  The commission recommended either a public health emergency or a Stafford Act emergency.

The Stafford Act “doesn't offer authority that is helpful here," a senior administration official said. "There has been some false reporting about this." A Stafford Act emergency is typically reserved for a terror attack or natural disaster in a more localized area.

Trump will formally make the announcement during a White House event Thursday.... On Aug. 10, Trump said his administration was drafting paperwork to officially declare the epidemic a national emergency, which was the “first and most urgent” recommendation in an interim report from his commission to combat the crisis. Two months later, some advocates and lawmakers were frustrated that the declaration still hadn’t come. At a press conference last week, Trump said he’d make the announcement this week, calling a declaration “a very important step” and saying “to get to that step, a lot of work has to be done and it’s time-consuming work.”

Administration officials said they felt that a public health emergency was a better use of resources.  It will allow acting HHS Secretary Eric Hargan to loosen certain regulations and issue grants and spend money that he otherwise would not be able to.  A public health emergency needs to be renewed every 90 days until the declaration is no longer needed.

Three agencies that play a role in the federal response to the opioid epidemic have acting directors instead of Senate-confirmed leaders: the White House Office of National Drug Control Policy, the Department of Health and Human Services and the Drug Enforcement Administration.  Rep. Tom Marino (R-Pa.) — an early backer of Trump — withdrew as the ONDCP nominee last week following a Washington Post-"60 Minutes” joint investigative report on a bill he sponsored that weakened the DEA's ability to enforce the nation’s drug laws.  Marino has vigorously defended himself. White House officials said Trump will be submitting names to lead HHS and ONDCP soon but pointed to “obstructionists” in the Senate for slowing down confirmation of lower level agency appointees who could help implement the action.

The declaration could spark a funding feud in Washington, as some say more cash is needed to make a declaration effective. The amount of money left in the public health emergency fund is paltry — just $57,000.  Administration officials said there have been ongoing discussions with Congress about securing more money for the fund as part of the year-end spending bill, but would not discuss specific dollar amounts.

Though I am sure there will criticism and debate as to whether the Trump Administration is doing enough with this latest move and other actions, I cannot help but note and praise the labeling and symbolism here.  Today's announcement involves a declaration of a "public health" emergency rather than a declaration of a "war on opioids" or advocacy for increased punishments for opioid activity.  (Although until we hear what Prez Trump actually says this afternoon, it may be premature to praise what it would seem he plans to say and I recall that last month AG Sessions talked about winning the war against opioids.)

In prior generations, such as when crack was the drug of great concern in the 1980s, the response at the federal level was to increase and emphasize the criminal justice fight in various ways.  A "public health" focus for drug problems is one that has been long urged by researchers and advocates; today's announcement suggests some rhetoric of late is shifting to embracing a "public health" model — although on-the-ground realities demonstrate that the criminal justice system is still playing a huge part of the public response to opioid and other drug issues.

A few of many recent related posts:

October 26, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Wednesday, October 25, 2017

US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"

Cover_drug-mand-minVia email, I just learned that the US Sentencing Commission has this morning released another big notable data report on mandatory minimum sentences in the federal system.  This latest report it titled "Mandatory Minimum Penalties for Drug Offenses in the Federal System," and this USSC webpage provides links to the full report and particular chapters. That same pages also provides this summary and overview of the report's key findings:

Summary

Using fiscal year 2016 data, this publication includes analysis similar to that in the 2017 Overview Publication, providing sentencing data on offenses carrying drug mandatory minimums, the impact on the Federal Bureau of Prisons (BOP) population, and differences observed when analyzing each of five main drug types.  Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.  Because drug offenses are the most common offenses carrying mandatory minimum penalties, many of the trends in this publication mirror the trends seen in the 2017 Overview Publication.

Key Findings

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for drug offenses.  As part of this analysis, the Commission makes the 10 key findings:

1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.  

2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.  

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentage of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.  

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.  

5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.  

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties and results in significantly reduced sentences when applied.  

7. Additionally, drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provision at USSG §5K1.1.  

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f) nor the substantial assistance provision at 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.  

9. There were significant demographic shifts in the data relating to mandatory minimum penalties.  

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Kudos to the USSC for continuing to release timely and informative reports as debates over federal sentencing policies and practices continue.  I hope in coming days to find time to mine some more findings from this report that I would consider "key," and I welcome comments that flag any and all elements of this latest report that folks consider especially interesting or important.

October 25, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, October 24, 2017

Many (but not all) Massachusetts DAs come out against eliminating certain drug mandatory minimums and other proposed reforms

This Boston Globe article, headlined "In harsh letter, DAs pan Senate’s criminal justice proposal," reports on a notable letter signed by most of the District Attorneys of Massachusetts to oppose a set of state criminal justice reform proposals. Here is the start of the article (which includes a link to the letter to legislators):

In a blistering public rebuke, nine of Massachusetts’ 11 district attorneys came out Monday against major parts of the state Senate’s sweeping criminal justice bill, which is aimed at reducing the number of people caught in the system.  In a six-page letter that comes days before the chamber is set to take up the legislation, top law enforcement officials railed against what is a Senate priority.

Although they praise some aspects of the bill, overall it “undermines the cause and pursuit of fair and equal justice for all, largely ignores the interests of victims of crime, and puts at risk the undeniable strides and unparalleled success of Massachusetts’ approach to public safety and criminal justice for at least the last 25 years,” the DAs wrote.

The letter also marks a break among the top prosecutors, with the signatures of Northwestern District Attorney David E. Sullivan and Middlesex District Attorney Marian T. Ryan — who is the chief law enforcement official of the state’s most populous county — notably absent.

The nine DAs are against eliminating mandatory minimum sentences for certain drug crimes such as trafficking up to 100 grams of cocaine — one proposal in the legislation scheduled for a Thursday vote in the Senate. And they expressed particularly vociferous opposition to the part of the bill that would make those changes retroactive, allowing hundreds of drug dealers the opportunity to get out of prison early.   “Where exactly are the residents eager for violent drug traffickers to be returned to their neighborhoods?” they wrote. 

Advocates and senators say mandatory minimums are a failed tactic from the war on drugs, one that has unnecessarily ensnared generations of people, particularly from communities of color, in the criminal justice system. And making the repeal of certain drug mandatory minimums retroactive is important for equity, they say.

The DAs energetically oppose the provision that would raise the age of criminal majority to 19, meaning all but the most serious offenses committed by 18-year-olds would likely be adjudicated confidentially in front of a juvenile court judge.

Advocates and Senate leaders say scientific research shows young people’s brains keep maturing into their 20s, and it is appropriate for the law to acknowledge that evolution. They say it’s just common sense to treat all high school kids the same way, instead of punishing an 18-year-old much more harshly than a 17-year-old for the same crime.

But the DAs wrote that “adopting a law that enables anyone to declare that ‘I am not responsible for my actions, my brain is!’ is something no rational parent would accept, and creates a slippery slope.”

The DAs vehemently oppose rewriting the state’s statutory rape law, which currently makes sex with anyone under 16 against the law. The bill would legalize consensual sex between teens close in age — an 18-year-old and a 15-year-old, or a 15-year-old and a 13-year-old, for example. That provision is “both unnecessary and dangerous, especially to girls and young women,” the nine DAs wrote.  But advocates say a so-called Romeo-and-Juliet law is sensible, and criminalizing the sexual contact young people inevitably have with each other is not the best way to respond to it.

October 24, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, October 13, 2017

Just a handful of headlines from the various front-lines of the opioid epidemic

I could readily fill this blog multiple times a day with tales of the opioid epidemic given the size and reach of the problem and the attention it is getting from many quarters.  In my view, the epidemic is, first and foremost, a public health issue.  But, as I say often on in this space and elsewhere, every major issues of public policy is a criminal justice/sentencing issue in some way.  These recent stories/headlined highlight these realities in various ways: 

October 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Sunday, October 08, 2017

Smarter Sentencing Act reintroduced in Senate with lots of support from both parties

In prior posts here and here, I noted the introduction this past week of two notable federal statutory criminal justice reform bills in the US Senate.  But this press release from the office of Senator Mike Lee details that a third notable bill, the Smarter Sentencing Act, was also formally introduced. Here are the basics from the press release:

[A] bipartisan group of U.S. Senators led by Mike Lee (R-UT) and Dick Durbin (D-IL) reintroduced the Smarter Sentencing Act of 2017. This legislation would modernize federal drug sentencing policies by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses. Senators Lee and Durbin were joined in this effort by Sens. Jeff Flake (R-AZ), Pat Leahy (D-VT), Cory Booker (D-NJ), Sheldon Whitehouse (D-RI), Al Franken (D-MN), Richard Blumenthal (D-CT), Tom Udall (D-NM), Ron Wyden (D-OR), Brian Schatz (D-HI), Angus King (I-ME), Gary Peters (D-MI), Ed Markey (D-MA), Tammy Duckworth (D-IL), Bernie Sanders (I-VT), and Martin Heinrich (D-NM).

“Our current federal sentencing laws are out of date, they are often counterproductive, and in far too many cases they are unjust,” said Senator Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo. The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses while enabling nonviolent offenders to return more quickly to their families and communities.”

Speaking of criminal justice reform generally, Senator Lee said, “over the past week, I’ve introduced or cosponsored three criminal justice reform bills—the Smarter Sentencing Act, the Sentencing Reform and Corrections Act, and the Mens Rea Reform Act. I would proudly vote for these bills, individually or with one or more of them packaged together, because I think reforming our criminal justice system is a moral and policy imperative. Any step forward will make a real difference. I look forward to continuing to work on these bills and on criminal justice reform issues more broadly, which will always remain a priority for me.”

The United States has seen a 500 percent increase in the number of inmates in federal custody since 1980, and almost 50 percent of those federal inmates are serving sentences for drug offenses. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster distrust of the criminal justice system.

I cannot yet find the text of the 2017 version of the Smarter Sentencing Act, but I presume it is similar to the 2015 version at this link.

A few prior related posts:

October 8, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Friday, October 06, 2017

US Sentencing Commission continues diving into issues surrounding synthetic drugs

A helpful reader reminded me today that, in the midst of busy times, I failed to spotlight this past week's US Sentencing Commission public hearings on October 4 concerning "synthetic cathinones."  This USSC webpage details that this Commission spent the morning hearing "testimony from experts on ... their chemical structure, pharmacological effects, trafficking patterns, and community impact."

The hearing agenda and written statements of the nine witnesses who testified are linked at this page, and I was hoping to fins some time in the coming days to review some of this testimony.  I would be grateful to hear from readers knowledgeable on these distinctive issues as to whether any of this testimony was surprising or could lead to major changes in applicable sentencing rules.

October 6, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Wednesday, October 04, 2017

Via Fox News, Senators Grassley, Durbin, Lee and Whitehouse start a renewed pitch for their Sentencing Reform and Corrections Act

This new Fox News commentary, headlined "Bipartisan criminal justice reform is how Congress is supposed to work — the time is now to get it done," carries this notable byline: "Sen. Chuck Grassley, Sen. Dick Durbin, Sen. Mike Lee, Sen. Sheldon Whitehouse." And here is some of what these four Senators have to say:

In 2015, a diverse group of lawmakers set out to rethink our approach to federal prison sentences. Our goal: improve public safety and the rule of law by ensuring that penalties match their crime. Many months of thoughtful deliberation yielded a product that earned broad bipartisan support in Congress and from organizations around the country and across the political spectrum. And though the political winds in Washington have shifted, that broad support for comprehensive sentencing reform remains strong.

This week, we are reintroducing the “Sentencing Reform and Corrections Act” as we continue to build on the most sweeping criminal justice reform effort in a generation.

Crafted by Republican and Democratic leaders, this legislation aims to safely and sensibly reduce excessive sentences. It recalibrates prison sentences for certain drug offenders and gives judges greater sentencing flexibility while keeping stiff penalties in place for violent criminals. The bill preserves important law enforcement tools to take down large criminal organizations while expanding outlets to shield low-level nonviolent offenders from lengthy mandatory minimum prison sentences. It eliminates mandatory life sentences for three-strike drug offenders and gives judges authority to retroactively apply the Fair Sentencing Act, which reduced the sentencing disparity between offenses involving crack and powder cocaine.  The bill also includes “back end” reforms to curb recidivism by helping inmates successfully re-enter society.

We believe this is the right mix of reforms to give nonviolent offenders who’ve done significant time for their crime a second chance to rejoin their families and contribute to our communities while also reducing taxpayer costs and empowering law enforcement to keep dangerous criminals off our streets.  Our bipartisan work represents hard-fought consensus to a long-established problem. In recent years a unique and growing chorus of voices from across the political spectrum prompted a number of proposals in Congress to reform sentencing laws.  However, until now, none garnered enough support to move forward. It became clear that if we wanted to truly make progress on this issue, we would have to come together, check our differences at the door, and focus on areas where we could reach agreement....

We are encouraged by engagement from the White House on this comprehensive criminal justice reform effort. Last Congress, our bill was supported by hundreds of organizations from a variety of industries and political perspectives, including the NAACP and the Charles Koch Institute. It was also endorsed by a broad range of faith-based organizations and law enforcement leaders. We continue to welcome input from stakeholders and our colleagues in government and the law enforcement community as we make additional improvements. This bill represents the way Congress is supposed to work, and is well-positioned to be one of the most significant bipartisan achievements of the 115th Congress. It also represents an important step in our nation’s ongoing quest for justice.

Our founders declared that Americans have the inalienable rights to life, liberty and the pursuit of happiness.  Our criminal justice system needs to reflect these values. That means seeking justice for both the victim and the accused.  Our colleagues in Congress supporting these reforms may not always see eye to eye on every proposal, but we are committed to upholding America’s promise of justice for all.

UPDATE: I now see that the full text of the Sentencing Reform and Corrections Act of 2017 — all 168 pages! — is available at this link.

October 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Terrific series of postings looking at empirics of the drug war and mass incarceration

Over at Medium, Xenocrypt is working on "five-part series on the effects of 'The War On Drugs' on 'mass incarceration'." Two posts into this series makes it clear that serious folks should spend some serious time looking at this analysis. Here are links to the first two lengthy postings:

Why The War On Drugs Matters In Mass Incarceration, Part 1: Who Goes To Prison.

Why The War On Drugs Matters In Mass Incarceration, Part 2: The Two Dimensions Of Prison Populations.

Here is part of the conclusion of this second post:

Why do different offenses seem important when looking at “prison sentences” as when looking at “prison populations”? To try to understand that, visualize “prison populations” as two-dimensional figures. Different parts of the figure might grow in different ways — and looking at height might tell you something different than looking at area.

According to these visualizations, the 2011 state prison system had more prison terms for drugs, “public order/other”, and lower-level violent and property offenses than the 1980 state prison system, but these were mostly short. Some prison terms did grow longer, but on average mostly for murder/non-negligent manslaughter, rape/sexual assault, robbery, and burglary....

Decomposing prison population growth into admissions and time served isn’t just an intellectual or visualization exercise. As I keep saying in this series, focusing on one statistic glosses over real human consequences. Violent offenders serving longer prison terms, along with additional prison terms for “rape/sexual assault” and “other violent” offenses, really did contribute more to “the incarceration rate” per se than the War on Drugs did.

That doesn’t mean the War on Drugs didn’t happen, or that all those extra prison terms for drugs and other lower-level offenses had no effects.  By placing admissions and time served in different dimensions, we might make that distinction clearer, and more fully understand what mass incarceration has really meant.

October 4, 2017 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, September 22, 2017

Discussing opioid epidemic, AG Sessions says he is "convinced this is a winnable war"

I have never been too keen on using war rhetoric to describe any activities other than actual war, and I was struck by the phrase quoted in the title of this post appearing toward the end of Attorney General Jeff Sessions' latest speech about the opioid epidemic.  Here is an excerpt from the close of the speech as prepared for delivery to law enforcement in Harrisburg, Pennsylvania:

[T]o help fight the overprescribing of opioid painkillers, I announced last month that we will allocate new resources to find and prosecute the fraudsters who help flood our streets with drugs.

The first new resource is a data analytics program at the Department called the Opioid Fraud and Abuse Detection Unit. This team will help us find the tell-tale signs of opioid-related health care fraud by identifying statistical outliers. Fraudsters might lie, but the numbers don’t.

The second is that I’ve assigned 12 experienced prosecutors to focus solely on investigating and prosecuting opioid-related health care fraud cases in a dozen “hot-spot” locations around the country -- places where they are especially needed. And one of those will be in Western Pennsylvania.

And, today, I am announcing that we will be awarding nearly $20 million in federal grants to help law enforcement and public health agencies address prescription drug and opioid abuse. This is an urgent problem and we are making it a top priority. I believe that these new resources and new efforts will make a difference, bring more criminals to justice, and ultimately save lives.

And I’m convinced this is a winnable war.

But in order to end this crisis, we must work together. Eighty-five percent of all law enforcement officers serve at the state and local level, and your work is essential to our success. Strengthening partnerships between law enforcement officers at all levels is a central theme of my tenure at the DOJ, and I hope you will help me do that.  Each of you has a difficult job, but it is a job worth doing, and a job that your communities are depending upon. And you can know this: you have our thanks, and we have your back.

September 22, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

Tuesday, September 12, 2017

So much to read about so many elements of the opioid epidemic

I have a hard time keeping up with all the dimensions of the opioid epidemic.  And, of course, the epidemic is fundamentally a public health crisis more than a sentencing issue.  Nevertheless, I find myself drawn to reading all sort of pieces about the epidemic, and here are links and headlines that have caught my eye recently:

September 12, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing | Permalink | Comments (3)

Sunday, September 10, 2017

Notable data on marijuana case processing after Brooklyn DA pledge to limit prosecutions

Marijuana-cases-chart-07This WNYC piece provides some interesting data about local marijuana prosecutions in a part of NYC.  The piece's headline provides the essential highlights: "Brooklyn DA's Pledge to Reduce Marijuana Prosecutions Makes Little Difference." And here are some of the details:

In 2014, Brooklyn’s new District Attorney Ken Thompson made national headlines when he said his office would decline to prosecute low-level marijuana cases, so long as the defendant had no serious criminal record and wasn’t selling the drug.

Noting that two-thirds of these misdemeanor cases wind up being dismissed, Thompson said they did nothing to promote safety and wound up hurting people of color, in particular. “In 2012, over 12,000 people in Brooklyn were arrested for possessing small amounts of marijuana,” he said, during his inauguration. “Mostly young black men.”

Thompson died of cancer last autumn. He was replaced (at his own request) by his first deputy, Eric Gonzalez, who continued the marijuana policy. But according to WNYC’s analysis, this supposedly groundbreaking change had less impact than many expected.

Using data from the state’s Division of Criminal Justice Services, WNYC found the Brooklyn DA was only slightly less likely to prosecute people for marijuana possession after Thompson took office in 2014. In 2010, almost 90 percent of arrests were prosecuted. That figure fell to almost 78 percent in 2014, and in 2016 roughly 82 percent of arrests were prosecuted. In other words, most people are still going to court because the Brooklyn DA only throws out about one out of every five low-level marijuana arrests.

“I expected to see the number to be higher,” said Kassandra Frederique, New York State director of the Drug Policy Alliance, which supports marijuana legalization.

WNYC also found racial disparities among those who benefited most from the DA’s policy. Last year, the Brooklyn DA declined to prosecute fewer than 20 percent of misdemeanor marijuana arrests involving blacks and Latinos. By contrast, that figure was more than 30 percent for whites and Asians.

Marijuana-cases-chart-08Scott Hechinger, a senior staff attorney at Brooklyn Defender Services, which represents low-income people, said he wasn’t surprised by any of this. “It still felt like the people who we were meeting were predominantly black and brown,” he said, when asked what changed after 2014. “And it still felt like an enormous waste of time, energy and money.”...

Gonzalez, the acting district attorney, has a theory for why most defendants are still prosecuted, like Iglesias. “One of the things about our marijuana policy was that it was limited to possession cases,” he explained in an interview with WNYC. “What we think may be happening is that a lot of these arrests is public smoking of marijuana.”

In other words, the district attorney's office still prosecutes those caught puffing a joint in a public place. That’s something many people didn’t fully grasp in 2014 when Thompson announced the policy change.

Both smoking and possession are classified by the state as the same misdemeanor (criminal possession in the fifth degree), the most common low-level charge. There was no way to separate smoking from mere possession from the data provided WNYC. (Several people WNYC interviewed at Brooklyn Criminal Court said they were arrested for smoking in public, including a 17-year-old boy who claimed the police nabbed him in a case of mistaken identity. All of the defendants we met were black or Latino and young.)

Gonzalez, who is running to hold onto his position this fall, said he was troubled by WNYC's finding that blacks and Latinos are more likely to be prosecuted. “I am committed to making sure my office does not contribute to racial disparities," he said. "If it takes me to be more aggressive in declining to prosecute more cases I’m willing to do that."...

Public defenders and legalization advocates now say there is only one way to correct the racial imbalance. They want the DA to stop prosecuting all marijuana cases. “This goes to a deeper need for us to talk institutionally about how the systems work for certain groups of people,” said Frederique.

But Gonzalez, the acting DA, argued that his policy is achieving positive results. Brooklyn declines to prosecute a greater share of cases than any other borough. He also said the DA’s policy put more pressure on the NYPD to make fewer arrests. Almost 17,000 people were arrested for low level marijuana possession in 2010. That number fell to 4,300 in 2016. “We’ve moved a long way,” he stated. “I’m committed to continuing to look at this issue and figuring out, can we have a system in which no one gets arrested for marijuana use where there’s no public safety value?”

Normally I would flag a story focused on marijuana over at my Marijuana Law, Policy & Reform blog, but the case-processing and prosecutorial discretion issues raised here are surely of interest to sentencing fans.  And this post also provides an excuse to review some recent posts of note from MLP&R:

September 10, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Thursday, September 07, 2017

"Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives"

The title of this post is the title of this article recently posted to SSRN authored by Joshua Horton. Here is its abstract:

This article investigates the issues and possible societal solutions to the Drug War, Opiate Epidemic, Mass Incarceration and other collateral consequences of current policies in three distinct parts. First, it discusses the DeFelonization of drug possession and the ramifications this would have nationally. Next, it addresses the influx of drug users into the community that are currently receiving little to no rehabilitation behind bars. This country will need to find a revenue source to fund a massive rehabilitation effort. It will come from marijuana legalization. And lastly, I investigate an up and coming approach to recovery called Recovery Community Organizations (RCO's). These entities incorporate an innovative, holistic bottom up approach, as opposed to the current top-down, massive, paternalistic governmental and criminal justice approach.

September 7, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, September 05, 2017

A deep look at "tough on crime" responses to the opioid epidemic

German Lopez has this lengthy important new Vox piece under the headlined "The new war on drugs: Not every state is responding to the opioid epidemic with just public health policies." I recommend the piece in full, and this excerpt highlights its themes:

There has been much discussion of criminal justice reform in the past several years. And there has been a lot of talk about treating the opioid epidemic — the deadliest overdose crisis in US history — as a public health, not criminal justice, issue, unlike past drug crises. The cliché about the crisis, said by both Democrats and Republicans, is that “we can’t arrest our way out of the problem.”

Yet the rhetoric doesn’t tell the whole story. In my own investigation, I found at least 13 states, including Kentucky, that passed laws in recent years that stiffened penalties for opioids painkillers, heroin, or fentanyl — largely in response to the epidemic.  In sharp contrast to all the talk about criminal justice reform and public health, these laws risk sending even low-level, nonviolent drug offenders — many of whom are addicted to drugs and need help for that addiction — to prison for years or decades.

The facts show that the conventional narrative about the opioid epidemic and criminal justice reform is incomplete. Most states — including many of the states I found that passed new “tough on crime” laws in response to the opioid epidemic — have passed criminal justice reform at some level in the past several years.  And the rhetoric about drugs has undeniably changed a lot in recent years across both political parties.

But as the opioid epidemic continues to kill tens of thousands of people in the US each year, many state lawmakers have gone back to the old criminal justice playbook to fight the crisis — even as the empirical evidence remains clear that tougher prison sentences are not an effective means to stopping the epidemic.  The new laws are just one example.  Several states have also dusted off old laws to lock up more opioid users and dealers.

And that shows that for all the talk about reform, America’s instincts for the “tough on crime” approach are still very much here.

September 5, 2017 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

Tuesday, August 29, 2017

Third Circuit panel rejects various challenges to severe stash-house sting sentence

A helpful reader made sure that I did not miss yesterday's dynamic discussion by a Third Circuit panel of a set of defense challenges to yet another severe sentence resulting from a stash-house sting.  The start of the majority opinion in US v. Washington, No. 16-2795 (3d Cir. Aug. 28, 2017) (available here), highlights why these cases are so notable:

Defendant-appellant Askia Washington was ensnared by a “stash house reverse sting” operation — one which hit many of the by-now-familiar beats.  Acting on what appeared to be insider information from a drug courier, Washington and his three co-conspirators planned to rob a Philadelphia property where they thought 10 kilograms of cocaine were being stored for distribution.  But as they discovered on the day of the robbery, the “stash house” was a trap set by law enforcement.  Their “courier” was an undercover federal agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which had developed the scenario from the ground up.  The cocaine did not exist.

Under federal law on conspiracy and attempt, the government could, and did, prosecute the crew as if fantasy had been reality.  Washington, the sole member to take his chances at trial, was convicted by a jury of two Hobbs Act robbery charges and two drug charges (18 U.S.C. § 1951(a) and 21 U.S.C. § 846), although he was acquitted on a gun charge.

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined.  For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds.  Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington, contributing to a total sentence of 264 months in prison — far more than even the ringleader of the conspiracy received.  For another, and as Washington claimed on multiple occasions before the District Court — and now again on appeal — people of color are allegedly swept up in the stings in disproportionate numbers.

These elements of controversy are bound up in the three claims Washington now raises on appeal.  Two are constitutional claims: Washington challenges his conviction and sentence by arguing that the use of the statutory mandatory minimum term violated his rights to due process, and he also alleges that the attorney who represented him at trial rendered constitutionally ineffective assistance.  While stash-house reverse stings can raise constitutional concerns, the use of a mandatory minimum sentence on these particular facts did not deprive Washington of his right to due process.  And while this is the rare case where a claim of ineffective assistance of counsel was properly raised on direct appeal instead of through a collateral attack, Washington has not shown prejudice sufficient to call into doubt the integrity of his trial.  We thus conclude that both constitutional claims are without merit.

A lengthy and nuanced discussion by the majority follows, and largely concludes that the stash-house sting in this case was, in essence, "good enough for government work."  Judge McKee penned a lengthy partial dissent focused on sentencing issues that has a conclusion including these paragraphs:

This case is the latest illustration of why federal courts across the country continue to find the government’s reliance on phony stash-house sting operations disturbing.  As I have explained, these cases raise serious issues of fairness while destroying the fundamental relationship between culpability and punishment that is so important to sentencing.  The conduct being sanctioned is the direct result of the government’s initiative rather than the defendant’s.

I reiterate that it is exceedingly difficult to conclude that Congress ever considered that mandatory minimum sentences would apply here.  Nevertheless, it just may be that the ultimate systematic resolution of this very troublesome approach to sentencing will have to await clarification by Congress, the Sentencing Commission,or the U.S. Supreme Court.  Meanwhile, it is worth echoing my colleagues’ caution: The Government’s success today should not be interpreted as a clue that “all such prosecutions will share the same fate” in the future.

August 29, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, August 27, 2017

"The Use and Abuse of Mutual-Support Programs in Drug Courts"

The title of this post is the title of this notable new article authored by Sara Gordon now available via SSRN.  Here is the abstract:

There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court.  Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment.

This disconnect between our understanding of addiction and available addiction treatment has wide reaching impact for individuals who attempt to receive medical care for addiction in this country, as well as for those individuals who are compelled by a drug court to receive that treatment.  Instead of receiving evidence-based treatment, most drug court participants are referred to mutual-support groups and programs based largely or entirely on 12-step principles.  Mutual-support groups, while well-intentioned and helpful as a supplement to evidence-based addiction treatment, are not a substitute for scientifically valid addiction treatment and should not constitute the primary form of medical assistance received by drug court participants.

This Article argues that drug and other specialty courts can be part of the transformation of the public perception of addiction, as well as the integration of addiction treatment into mainstream medicine by incorporating and endorsing evidence-based strategies for the treatment of addiction, including psychosocial and pharmacological treatments.  Moreover, by adopting these treatments more readily and providing more opportunities for drug court participants to receive evidence-based treatment, drug courts can dramatically improve treatment outcomes for participants.

August 27, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, August 21, 2017

Reviewing recent chapters of the long-running US "war on drugs"

The Guardian has this lengthy new article on federal drug crime policies headlined "How Jeff Sessions and Donald Trump have restarted the war on drugs."  I find the headline frustrating because the federal government never really ended the "war on drugs" so it is misguided to suggest something that never stopped has been restarted.  That lingo notwithstanding, the extended piece provides a useful primer on recent drug war developments during the Obama and Trump era, and here are excerpts:

Barack Obama’s attorney general, Eric Holder, [in 2013] was pushing through a set of “smart on crime” reforms that included directing federal prosecutors to avoid triggering mandatory minimum sentences when dealing with lower-level, nonviolent drug offenders.  For many years research and advocacy groups had opposed mandatory minimum sentences as cripplingly expensive, marked by racial disparities and of dubious value for crime prevention. But the laws were still on the books and the federal prison population continued to grow.

Holder was announcing that federal prosecutors were being instructed to use minimum sentences in fewer, and more serious, cases. Central to this push for change, said America’s first black attorney general, was the evidence that America’s harsh drug enforcement had fallen more heavily on African Americans....

In May [2017], Sessions reversed his predecessor’s initiative, claiming, without evidence, that Holder’s sentencing changes had led to America’s sudden 10.8% increase in murders in 2015.... What is so striking about the move by Sessions and the Trump administration is that it is at odds with much thinking across the globe about the war on drugs, including among leaders in Latin America.  Ever since 2011 when Juan Manuel Santos, as the president of Colombia, declared that the war on drugs had failed, a growing international consensus has been forming on the need for a new conversation to discuss the violence, bloodshed and ruined lives that followed in the wake of the war on drugs – whether in Colombia, Mexico or America.

The change in direction in the US has come at a time when America has been also seeing an increasing number of states liberalizing laws on the consumption and sale of marijuana.  Into this evolving international and national context has stepped Sessions, with a very different approach.  The new attorney general and his initiatives represent a huge setback for advocates who have worked for decades to build bipartisan agreement that America’s war on drugs had been a failure and it was time to reverse the damage....

For decades, reciting law and order slogans has been the path of least resistance for politicians -- and the policymakers who sign such harsh legislation have not been held responsible for its consequences. “I am unaware of any legislator who has gotten into political trouble for codifying a simple-minded slogan or soundbite that pushes up the incarceration rate with no effect on crime,” says Bobby Scott, an African American Democratic congressman from Virginia who has been fighting for a better approach to criminal justice since he was first elected in 1993. “I am aware of many politicians who voted for intelligent, research-based initiatives that reduce crime and save money, and because they’re labeled ‘soft on crime’ they get in political trouble.”

In recent years, driven by the enormous price tag of mass incarceration for taxpayers, reforming America’s criminal justice system has become a bipartisan effort, with the Republican mega-donor Koch brothers and the advocacy group Right on Crime supporting the cause, and conservative states like Texas leading the way on reducing their prison populations.  Rick Perry, the former Texas governor who now serves as Trump’s energy secretary, was one of the many Republicans who signed on to these reforms. “After 40 years of the war on drugs, I can’t change what happened in the past,” he said at the World Economic Forum in 2014. “What I can do as the governor of the second largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done.”... “

You are never going to win the war on drugs. Drugs won,” Koch Industries executive Mark Holden told reporters in Colorado in June, expressing frustration at Sessions’ return to war on drugs policies and rhetoric. “Illegal drug usage is at the same or higher levels now than it was when we started the war on drugs,” Holden, who leads the Koch criminal justice reform efforts, told the Guardian. “We need to go to a different approach.”

Sessions’ rollback of Holder’s sentencing reforms has been hailed by some law enforcement groups, and the Justice Department has also defended Sessions’ changes by pointing to his backing from people “actually on the front lines dealing with violent criminals on a daily basis”.  Among Sessions’ supporters in law enforcement are the Fraternal Order of Police (the nation’s most prominent police union), the Federal Law Enforcement Officers Association, and the National Association of Assistant US Attorneys, which represents the frontline federal prosecutors whom Holder had tried to rein in.

Larry Leiser, the national association’s president, says that many federal prosecutors believe that tough mandatory minimum sentences are a crucial tool in convincing lower-level drug defendants to cooperate with the government when it’s prosecuting the higher-ups involved with the criminal activity.  “The tools we have [to tackle drugs and violence] are the tools that Congress has created for us, Leiser says. “We’re just trying to hold on to the ones we’ve got.”

“Some organizations and people like to make these drug traffickers the victims. What about the people whose lives they kill and the lives they destroy?” Leiser asks. “We’ve lost our way on this issue; we’ve failed to focus on the victims.”...  Leiser and Patrick O’Carroll, the executive director of the Federal Law Enforcement Officers Association, both say they believe the Obama administration’s modest criminal justice reforms are connected to 2015’s increase in murders. “If you have less drugs in the marketplace, there are less people dying and fighting over the drugs, and you’re going to have less murders,” Leiser says.

August 21, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, August 17, 2017

US Sentencing Commission finalizes policy priorities and publishes notable holdover amendments

As reported in this press release, the US Sentencing Commission "today approved its final policy priorities for the upcoming amendment year ending May 1, 2018, which includes an examination of the overall structure of the guidelines and a continuation of its work on synthetic drugs [and] voted to publish several holdover proposals from the previous amendment cycle."  Here is more:

During the upcoming amendment year, the Commission will continue to explore approaches to simplify and strengthen the guidelines. “On this thirtieth year of the federal sentencing guidelines system, the Commission welcomes the opportunity to work with the Congress, the Courts, the Department of Justice, and other stakeholders to find ways to promote certainty and proportionality in sentencing while reducing the complexity of the guidelines,” stated Circuit Judge William H. Pryor, Jr., acting chair of the Commission.

The Commission will also continue its two-year study of synthetic drugs. In April, the Commission held a public hearing to receive testimony on the prevalence and effect of synthetic drugs. The Commission has since commenced a study of specific categories of synthetic drugs, including fentanyl. The Commission will research their chemical structure, pharmacological effects, potential for addiction, legislative and scheduling history, and other relevant issues. The study is intended to provide a meaningful distinction between categories of synthetic drugs so that closely related substances are more easily determined in the guidelines....

Stemming from the Commission’s research on youthful offenders as well as recommendations made by the Tribal Issues Advisory Group (TIAG) in its May 2016 report, the Commission will also continue to study how juvenile sentences are considered in the calculation of the defendant’s criminal history score.

Other priorities include continued work on mandatory minimum penalties. Following the release of the 2017 Mandatory Minimum Overview in July, which built on the Commission’s 2011 report, the Commission will release additional reports highlighting the impact of mandatory minimum penalties for certain offense categories. The Commission will also continue to work with Congress to adopt a uniform definition of “crime of violence” included in recommendations set forth in the 2016 Report to the Congress on Career Offender Sentencing Enhancements.

The Commission also published today several proposed guideline amendments from the previous amendment cycle and as an extension of its current policy priority work. “Today’s proposed amendments are a continuation of our work during the previous amendment year. These holdover proposals were not voted on last year due to the lack of a quorum during the deliberation process. Publishing today gives this reconstituted Commission an opportunity to carefully review these proposals and consider them as early as possible in the current amendment cycle,” stated Judge Pryor.

Among the proposed amendments published today are changes that would increase the number of federal offenders eligible for alternatives to incarceration. Informed by the Commission’s multi-year study on recidivism, one of the proposed amendments would add a downward adjustment to the guidelines for first offenders.

August 17, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Police groups supportive, but prosecutor objects, to new Oregon law shifting drug possession offenses down from felony to misdemeanor

This AP piece, headlined "Oregon makes drug possession a misdemeanor," reports on the notable criminal justice reform signed into law this week in the Beaver State. I found especially interesting the diverse views on the legal charge expressed by police groups and at least one prosecutor. Here are the particulars: 

A bill signed by Oregon Gov. Kate Brown on Tuesday makes personal-use possession of cocaine, heroin, methamphetamine and other drugs a misdemeanor, not a felony. Oregon joined just a handful of other U.S. states in defelonizing drugs under the new law, which was supported by law enforcement groups and takes effect immediately.

Jo Meza, owner of Amazing Treatment, a rehab center in Salem, applauded the move. She has seen the damage caused by drug addiction in her 30 years in the field. “There’s a huge crisis out there, and locking people up is not going to work,” Meza said....

Among the bill’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment.  But the two groups, in a letter to a state senator who backed the bill, said the new law “will only produce positive results if additional drug treatment resources accompany this change in policy.”

“Reducing penalties without aggressively addressing underlying addiction is unlikely to help those who need it most,” the groups warned.  Another measure appropriated $7 million that can be used to pay for drug treatment.

Linn County District Attorney Doug Marteeny had tried to convince lawmakers to dump the defelonization of dangerous drugs from the bill, which also targets police profiling.  “To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” he wrote.

Those who have a prior felony conviction won’t be afforded misdemeanor consideration, nor will people who have two or more prior drug convictions or possess more than user amounts.

August 17, 2017 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Monday, August 14, 2017

Notable application of DOJ spending restriction to halt federal sentencing of convicted marijuana offenders

This new Los Angeles Times article, provocatively headlined "The feds seized guns, gold and 320 pot plants. So why did a judge rule they can't pursue marijuana charges?," reports on a notable federal District Judge ruling from last week.  Here are the basics:

When agents from the Drug Enforcement Administration raided a remote farm in Humboldt County five years ago, they found plenty to incriminate the owners, Anthony Pisarski and Sonny Moore. More than 300 marijuana plants were growing in a pair of greenhouses. Agents found guns in a house on the sprawling property and about $225,000 in cash, much of it bundled in vacuum-sealed pouches, hidden in a garage and some pickup trucks. Later searches uncovered another large stash of cash, along with bars of gold and silver.

Pisarski and Moore ultimately pleaded guilty to a federal charge of conspiring to manufacture and sell marijuana.

But in a ruling believed to be the first of its kind, a judge last week put a stop to the case before the men were sentenced to prison. The judge found he had no choice but to call off prosecutors in light of an unusual budget rule in Congress that forbids federal law enforcement from interfering with states where medical marijuana is legal.

The decision by U.S. District Judge Richard Seeborg in San Francisco illustrates for the first time what could be a serious legal hurdle if U.S. Atty. Gen. Jeff Sessions, a fierce marijuana opponent, decides to crack down on medical marijuana, which remains illegal under federal law. While it remains to be seen how many other marijuana cases will be closed down like the one in San Francisco, supporters of states’ authority to legalize pot hailed the decision and said they hoped it served as a check on Sessions.

“This is a signal that hopefully will go totally across the country — that federal prosecutors should stop wasting their time and start focusing on real criminals,” U.S. Rep. Dana Rohrabacher (R-Costa Mesa), who has led a legislative campaign to rein in the Justice Department on medical marijuana cases, said of the judge’s order.  “My conservative friends like Jeff [Sessions] need to look themselves in the mirror and say, ‘We don’t like these people smoking marijuana, but they do have a right to do it because it’s their lives, not the government’s.’ ”

The ruling hinged on a short amendment written by Rohrabacher and then-U.S. Rep. Sam Farr (D-Carmel), who recently retired, to an appropriations bill in late 2014 that authorized government spending for the upcoming year.  Though brief, the amendment was meant to have a significant effect: It forbade the Department of Justice from using funds in a way that obstructed a state “from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Congress has renewed the prohibition each year since.

Until now, U.S. district judges had rejected attempts by defendants to argue that the amendment applied to their cases.  In a case in Fresno involving a man convicted of illegally operating a marijuana cooperative, for example, a judge found the man had violated California’s medical marijuana law by selling marijuana for profit and therefore was fair game for federal prosecution....

For Pisarski and Moore, the budget amendment offered a last-minute lifeline.  The amendment was added when the pair were only days away from being sentenced. Prosecutors were asking the judge to send the men to prison for nearly three years.  The pair owned 242 remote acres of property that included a house, a warehouse and two greenhouses where agents discovered 320 growing marijuana plants, according to court records filed by the U.S. attorney’s office . Federal agents found a loaded firearm in both of their bedrooms.  Among the evidence seized was $189,000 in cash that had been welded inside the lining of a trailer.

Pisarski’s attorney, Ronald Richards, made an emergency request to postpone the sentencing in order to see if the amendment would be signed into law.  The judge agreed, and when the spending rule, which passed with broad bipartisan support, became law, Richards said he sent emails to public defenders and other defense attorneys across the country to alert them to the new legal avenue the amendment opened in marijuana cases....

Justice Department officials, however, balked at such an expansive interpretation of the amendment. They acknowledged the spending ban prohibited them from meddling in the affairs of state officials but did not accept that it prevented them from going after producers and sellers like Pisarski and Moore. Richards and Moore’s attorney sought to push back the sentencing over and over as the legal landscape on marijuana cases continued to shift.

Last year, the 9th Circuit Court of Appeals ruled that defendants in California and other states in the court’s jurisdiction with medical marijuana laws were entitled to a hearing to determine whether they had been in compliance with those state laws. If defendants could demonstrate that they had abided by state rules, prosecutors were to be blocked from pursuing federal drug charges, the court said.

Last month, Seeborg held a hearing for Pisarski and Moore. Their attorneys argued the marijuana plants the men grew were earmarked for two nonprofit collectives that distributed it to its members in line with California regulations. In a court filing, Pisarski told the judge he needed guns at the house to protect himself against “mountain lions, pigs with big teeth and bears” when he was outside at night. The government countered that the men had not proved that all the members of the collective were legitimate and that the guns, cash and gold indicated the men planned to sell the pot for profit.

On Tuesday, Seeborg sided with Pisarski and Moore, saying the men were under no burden to verify that members of the collectives were qualified to belong. He acknowledged that the money and weapons could be signs of a criminal operation, but said they were “equally consistent with the operation of a rural, cash-intensive enterprise.” In his ruling, Seeborg echoed the 9th Circuit when he emphasized his decision was valid only as long as Congress continues to renew the spending restrictions on the Justice Department.

Having admitted their guilt but not been sentenced, Pisarski and Moore find themselves in an odd legal limbo. Prosecutors in their case did not respond to requests for comment, leaving it unknown whether the U.S. attorney in the Northern District of California will ask for the case to be dismissed or try to wait to see if Congress does an about-face.

I cannot yet seem to find a copy of Judge Seeborg's notable ruling anywhere on-line as of this writing. I will be sure to post it if I can get a copy/link sent my way.

UPDATE:  A helpful reader sent me a copy of Judge Seeborg's 10-page ruling in US v. Pisarski, and it can be downloaded via this link:

  Download Seeborg spending rider ruling

August 14, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (10)

Wednesday, August 09, 2017

Still more interesting new "Quick Facts" publications on federal drug sentencing from the US Sentencing Commission

In this post a few month ago, I noted that the US Sentencing Commission had released a notable new Quick Facts covering all "Drug Trafficking Offenses"  (As the USSC explains and reglar readers know, "Quick Facts" are official publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")   Now I see that the USSC has just released this big set of new Quick Facts covering individual drugs:

The data appearing these publications runs through Fiscal Year 2016, which is end of September 2016, and thus they set something of a benchmark for the end of the Obama era before the start of the Trump era of federal criminal policies and practices.

August 9, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Saturday, August 05, 2017

"Criminal justice reformers are hooked on drug courts, they should kick the habit"

The title of this post is the headline of this notable new commentary by Jasmine Tyler in The Hill. Here are excerpts:

With opioid overdose deaths hitting record highs throughout the US, and the White House Commission calling for declaring a state of emergency, many are looking for new solutions to addiction and overdose. But one proposal popular in some circles — the expanded use of drug courts — is not the perfect solution some make it out to be.

Drug courts are an old idea. Created in the 80s to expedite the overwhelmed court dockets created by the drug war, they have already enjoyed a great deal of fanfare and funding — from both sides of the political aisle. But despite the good intentions that often underpin them, they are a flawed solution.

These courts are squarely housed in the criminal justice system, where there is little medical expertise or care available but where punitive sanctions are plentiful. Physicians for Human Rights recently reported that drug courts “routinely fail to provide adequate, medically sound treatment for substance use disorders, with treatment plans that are at times designed and facilitated by individuals with little to no medical training.”

And, even though relapse is an expected part of recovery, people brought before a drug court with a positive drug test are often jailed, and can end up serving lengthy periods of time — sometimes more than had they been prosecuted through the regular criminal system.

Interestingly, the White House Commission didn’t even mention drug courts in the interim report released on July 31, but they did support a number of cutting edge, public health centered, responses such as expanding harm reduction approaches like medication-assisted therapy.

Other solutions the commission should explore for their final report include promoting diversion programs to keep people out of the criminal justice system, making the overdose prevention medication Naloxone available over the counter, and decriminalizing possession of drugs for personal use....

A recent broad study found that there is no evidence that compulsory treatment is effective and may do more harm, and even the Government Accountability Office has found the purported cost-savings difficult to substantiate.

In my days working as a sentencing advocate with public defenders, clients would frequently ask for jail time in lieu of drug courts. This wasn’t because they had no concerns for their own health and well-being, but the opposite. They were deeply concerned with their own health and well-being and felt drug courts would cause more problems for them in the long run....

Beyond the many questions about their effectiveness, drug courts do not address the fundamental reality that any kind of criminal sanctions are simply inappropriate for the overwhelming majority of drug offenders, whose only crime is the personal use of drugs or possession of drugs for personal use. In fact, by offering a notionally “softer” kind of criminalization, drug courts may actually help entrench that fundamentally untenable paradigm....

Drug courts might be a tool in the toolbox of a better system if they are focused only on offenses other than drug use or possession — for example, property crimes committed in connection with drug dependence. But even in that case, they should only be considered if they are set up to provide treatment that is medically appropriate, as well as other social supports, and if — and this is a big if — courts would truly take high risk, high need defendants as the National Association of Drug Court Professionals says they should.

Our communities deserve 21st century solutions and drug courts are, at best, a better version of a broken and outmoded system. They may sometimes have a useful place in the reality we’re stuck with, but they certainly aren’t the way forward. Instead of looking back at a criminal justice solution that has failed, the commission should stay on the right track and focus on health-based programs that address the opioid crisis.

August 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Thursday, August 03, 2017

Mississippi opioid task force apparently calling for extreme sentences for heroin dealers

In this post yesterday, I noted that recent reports and activity emerging from the Trump Administration concerning the opioid epidemic did not include any calls for new or increased federal sentences as part of the criminal justice response.  But this local article from Mississippi, headlined "Task force: Up to life sentences for heroin, fentanyl dealers," highlights that some state actors are talking about some remarkable sentencing reactions to the crisis.  Here are the basic details:

The Governor’s Opioid and Heroin Study Task Force is recommending some of the toughest measures in the U.S. to fight an epidemic that is now killing more Americans in a single year than U.S. service members who died during the entire Vietnam War...

To battle the increased problem of heroin and fentanyl overdoses, the task force is recommending tough punishment for drug dealers who sell heroin or fentanyl — an enhanced sentence of 40 years to life.

I cannot yet find a copy of this state task force's full recommendations, so I am not sure that it is really calling for all dealers of heroin or fentanyl to receive sentences of at least 40 years in prison.  But, whatever the particulars, I am sure that this task force is demonstrating how easy it is to advocate for increased sentences as one part of a response to our nation's latest drug epidemic.

UPDATE: A helpful comment below provides this link to the Mississippi Task Force recommendations.  The first recommendation in the law enforcement section simply urges "increased punishment" for heroin dealers and an "enhanced sentence of 40 year to life" for all who sell or transfer any controlled substance "that result in death (or serious bodily injury)."  So, intriguingly, the opioid epidemic has prompted a recommendation in Mississippi for a mandatory minimum 40-year prison term for any and every person who shares a drug that results in serious injury.

Though I am not sure how stringently Mississippi law approaches causation and serious bodily injury, I am sure this provision could be interpreted in expansive ways that could expose many drug-involved individuals to a mandatory minimum 40-year prison term. Indeed, were this recommendation to become law, I could imagine an aggressive prosecutor considering applying this provision to persons who passed around marijuana or ecstasy at a party if a partygoer thereafter badly crashed his car and broke some bones on the way home from the party.

August 3, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Wednesday, August 02, 2017

Two big new Trump Administration efforts to address the opioid epidemic ... neither of which call for new or increased sentences

This week has seen two big notable developments concerning addressing the nation's opioid epidemic coming from the Trump Administration: (1) on Monday, the Administration’s Commission on Combating Drug Addiction and the Opioid Crisis presented this interim report of policy recommendations; (2) today, Attorney General Jeff Sessions announced the formation of the Opioid Fraud and Abuse Detection Unit, which this press release describes as "a new Department of Justice pilot program to utilize data to help combat the devastating opioid crisis."

Both the Commission report and the AG Sessions' comments rolling out this new DOJ unit talk about the importance of criminal law enforcement as part of a national strategy to deal with opioid problems.  But, as I note in the title of this post, neither the Commission report nor AG Sessions calls for new or increased federal sentences as part of the criminal justice response.  Of course, federal (and state) criminal punishments for opioid and heroin offenses are already pretty severe in lots of settings.  But in prior eras, it would be common to hear politicians and others say that already tough sentencing schemes were "obviously" not tough enough when a problem persisted.  (Also, it should be recalled, the US Sentencing Commission reduced all guideline drug sentences by two levels back in 2014.  It would certainly be easy for AG Sessions to call for the heroin guidelines sentences to be restored to their pre-2014 levels.)

For those concerned about increased federal criminal prosecutions in drug cases and the potential impact on federal incarceration levels, the mere lack of a call for new or increased sentences surely will not be seen as a cause for celebration.  Nevertheless, I still think it notable and intriguing that a tougher sentencing scheme is not (yet) expressly part of the opioid agenda coming from the Trump Administration.

August 2, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Two effective new commentaries on mass incarceration, the drug war and local realities of criminal case processing

These two new commentaries provide effective and important reminders of various realities of our nation's criminal justice system(s):

I recommend both pieces in full. 

August 2, 2017 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, July 26, 2017

Jared Kushner still finding time to work on sentencing reform with members of Congress

This lengthy new Wall Street Journal article, headlined "Kushner’s Interest in Drug-Sentencing Limits Is at Odds With Attorney General: Jared Kushner has discussed criminal justice changes with lawmakers who backed a 2016 measure that then-senator Jeff Sessions opposed," reports on the continued efforts of President Trump's son-in-law to keep federal statutory sentencing reform afloat. Here are excerpts:

President Trump’s son-in-law and senior adviser, Jared Kushner, and some Republican lawmakers are discussing potential changes to the criminal justice system, including to mandatory minimum sentencing, that could conflict with Attorney General Jeff Sessions ’ tough-on-crime agenda.

Mr. Kushner met this month with House Judiciary Chairman Bob Goodlatte (R., Va.), continuing a dialogue with lawmakers that began in March with Senate Judiciary Chairman Chuck Grassley (R., Iowa) and Sens. Dick Durbin (D., Ill.) and Mike Lee (R., Utah). Mr. Kushner also has huddled with leaders of organizations involved in criminal justice.

“He’s quietly listening to all sides, including outside groups, to understand what’s possible and to ultimately be able to make a recommendation to the president,” said a White House official familiar with the meetings. “It’s a personal issue to him given his father spent time in prison. He got to know the families and got to see what’s wrong with the federal prison system.” Mr. Kushner’s father, Charles Kushner, a real-estate executive, was sentenced in 2005 to two years in prison after pleading guilty to tax evasion.

Mr. Kushner’s discussions have included a range of issues, including curbing long mandatory-minimum sentences for nonviolent drug offenders. In contrast, Mr. Sessions is promoting mandatory minimums as a pivotal crime-fighting tool that helps prosecutors get cooperation from suspects and keeps dangerous offenders behind bars. Mr. Kushner has met with Mr. Sessions and is trying to find common ground, according to the White House official.

However, Mr. Sessions appears to have lost favor with the president for recusing himself from a probe into Russian interference in the 2016 election. Mr. Trump has taken to berating Mr. Sessions publicly, on Tuesday saying on Twitter Mr. Sessions “has taken a VERY weak position on Hillary Clinton crimes,” referring to the Federal Bureau of Investigation look into her email practices. On Monday, Mr. Trump referred to Mr. Sessions as “our beleaguered A.G.”

“Everyone does see it as a challenge that some people in the White House and Congress want to do criminal justice reform but are at odds with actions the attorney general is taking,” said Greg Mitchell, a federal lobbyist who has worked on criminal-justice issues for years, representing groups that favor shorter sentences....

Mr. Grassley, in a recent speech outlining his agenda at the American Enterprise Institute, a conservative think tank, said he is awaiting input from the White House before reviving the sentencing bill. Supporters cast it as a bipartisan initiative that demonstrates the growing consensus around reducing the prison population. “It is consistent to be both tough on crime and still support sentencing reform,” Mr. Grassley said at AEI. “Passing a sentencing bill remains a top legislative priority for me as chairman.”

Advocates of less-punitive drug-sentencing laws view Mr. Kushner as their chief ally in the White House. However, Mr. Kushner’s responsibilities are broad, from Middle East politics to overhauling the federal bureaucracy. He has also been drawn into the Russia probes. As with climate change and other issues, criminal justice divides the White House into opposing camps. Mr. Trump ran on a law-and-order platform, and Mr. Sessions has largely executed that agenda.

“We have a chance of getting the support of this administration,” Mr. Grassley said in his AEI speech. “You look at some people appointed by this president, you might believe otherwise, but I have reason to believe it’s possible. I know there is both support and opposition within this White House.”

In a sign of the sensitivities surrounding drug sentencing, two newly-filed criminal-justice bills steer clear of the issue. Rep. Doug Collins (R., Ga.) introduced a bill Monday that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by Mr. Goodlatte, the bill requests $250 million over the next five years to pay for prison education programs. “As a compassionate conservative, I know that people who are doing time will at some point re-enter the community,” Mr. Collins said.

Congress is unlikely to focus on criminal justice before the fall, lobbyists and staffers say. It’s unclear whether Senate Majority Leader Mitch McConnell (R., Ky.), who declined to bring the 2016 sentencing bill to a vote, would embrace a similar bill this time around.

July 26, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Tuesday, July 25, 2017

Shouldn't latest lawsuit challenging federal marijuana prohibition include an Eighth Amendment claim?

The question in the title of this post is my (sentencing-addled?) reaction to seeing the 89-page complaint filed yesterday on behalf of a number of notable plaintiffs in federal district court. The full complaint, which is available at this link, is summarized by Keith Stroup, legal counsel for the advocacy group NORML, in this new posting.  Here is part of that summary: 

Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.

Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution....

In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution. Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.

Like every self-respecting law professor, I love novel constitutional claims -- they are certainly "good for business."  Consequently, I am intrigued and bemused by the effort to bring down the CSA as a violation of the First Amendment and the "Right to Travel."  But, especially because the CSA includes criminal penalties for any and all marijuana use, even if that use is recommended by a doctor for a serious medical condition, I have long thought there could be a viable Eighth Amendment claim that possible federal prosecution for some marijuana activity threatens a form of "cruel and unusual punishment."

A big new lawsuit attacking the CSA on various grounds on behalf of medical marijuana patients would now seem to present good new opportunity to bring a big new Eighth Amendment claim.  After a lot of recent initiative and legislative reforms, some kind of medical marijuana reform is the law in roughly 90% of US jurisdictions (details here).  And the Supreme Court's Eighth Amendment jurisprudence always talks up "evolving standards," and it often stresses the import of "objective indicia of society’s standards, as expressed in legislative enactments and state practice" to evidence a "national consensus" against a particular type of punishment.  It thus strikes me that there is now an especially strong argument that there is now an especially strong national consensus in the US against criminally punishing anyone for using marijuana for a legitimate medical reason.

But perhaps I am missing something when I think about this issue in Eighth Amendment terms, and perhaps a reader can help me identify a possible good reason for this new lawsuit to be missing an Eighth Amendment argument.

July 25, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (8)

Monday, July 24, 2017

Distinct approaches to the opioid epidemic

Earlier this month, Kathleen Sebelius and Tommy Thompson, who served as U.S. Secretaries of Health and Human Services under the last two Presidents, penned this Hill commentary headlined "5 big ideas to halt America's opioid epidemic."  Here are the five big ideas as these HHS Secretaries presented them: "Expand access to treatment through insurance...; Rein in overprescription of opioid pain relievers...; Treat opioid addiction as a public health problem...; Stop drug overdose deaths with this solution...; Learn how to treat pain with minimal side effects."

But as the headline of this New York Times article reports, some prosecutors in the New York region have been pursuing a much different big idea: "New Tactic in War on Opioids: Charging Dealers in Overdose Deaths."  Here is an excerpt from the piece:

As heroin and its synthetic cousin, fentanyl, send more and more victims to the morgue, prosecutors are leaping into largely uncharted legal terrain, as they tried in the 1970s, to fight the scourge. The second-degree manslaughter and criminally negligent homicide charges filed against Mr. Cummings follow similar strategies used recently by prosecutors in upstate New York and on Long Island. They also mirror a case brought three years ago by the city’s special narcotics prosecutor, Bridget G. Brennan, against a pain management doctor, Stan Xuhui Li, who was sentenced to more than 10 years in prison.

Convicting a physician of recklessly causing the death of his patients is a leap beyond proving a drug dealer did the same to a customer, but they reflect the same approach: prosecutors mixing current laws with new investigative tools to fight back against the rising tide of opioid-related deaths. The Richmond County district attorney, Michael E. McMahon, has applied such tactics in more than 240 overdose cases....

Around the city, a more common path for such cases has been through federal courts. Prosecutors in the Southern District of New York have brought 13 cases over the last four years charging people with “distribution of drugs causing death,” a statute that carries a 20-year minimum sentence. A bill in Albany, dubbed Laree’s Law, to create a homicide charge in state cases, has languished in the Assembly. In all cases, the authorities said they sought the most punitive sanctions, which has led to a focus on tying narcotics rings to violence, particularly in gang takedowns.

July 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (6)

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)