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)

Wednesday, June 21, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 20, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related post:

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

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

Pew analysis finds no relationship between drug imprisonment and drug problems

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

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

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

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

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

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

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

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

Monday, June 19, 2017

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

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

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

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

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

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

Sunday, June 18, 2017

Could jail be "the answer" for drug addicts?

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, June 17, 2017

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts: 

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

Thursday, June 15, 2017

"Support Grows for Civil Commitment of Opioid Users"

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

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

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

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

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

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

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

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

Thursday, June 08, 2017

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 06, 2017

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

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

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

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

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

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

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

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

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

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

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

Sunday, June 04, 2017

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

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

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

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

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

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

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

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

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

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

Friday, June 02, 2017

Tracking state work on criminal justice and drug policy through Stateline

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

 

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

Thursday, June 01, 2017

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

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

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

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

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

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

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

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

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

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

Wednesday, May 31, 2017

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Wednesday, May 24, 2017

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

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

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

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

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

Monday, May 22, 2017

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

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

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

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

Thursday, May 18, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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