Sentencing Law and Policy

Is crack reform to be subject to bargained justice?

The Washington Post has this intriguing little item suggesting a crack sentencing reform deal could be in the works:

Congress could limit the early release of crack cocaine offenders as part of a possible deal with the Bush administration to reduce a disparity in cocaine sentencing, a leading Democrat said yesterday.

Sen. Joseph R. Biden Jr. (Del.) said there is growing support in Congress for revising a 22-year-old law that sets far harsher federal penalties for crack cocaine than for powder cocaine.  A Justice Department willingness to reduce the disparities and revise a mandatory minimum sentence for crack possession makes a deal possible, Biden said. He said he could consider in return the Bush administration's plea to limit a pending release of crack offenders whose sentences were cut by the U.S. Sentencing Commission.

"I'm willing to consider a compromise [as long as] . . . there's a significant change relative to disparities, a significant change relative to minimum mandatory, and in return for that I'm willing to talk about a meaningful change in retroactivity," Biden said after a hearing of the Senate Judiciary subcommittee he chairs.

I would be very surprised if this kind of deal becomes a legislative reality anytime soon, but it is really interesting that this sort of deal-making is being openly discussed.

Some recent related posts:

• Gearing up for today's Senate crack hearing
• Report on Senate crack hearing

Reports from drug war fronts

Despite federal sentencing developments that amount to a small de-escalation of the battle on one front, the war on drugs continues to rage on.  This morning, various newspapers provide these reports and commentaries from various drug-war fronts:

• From the New York Times here, "Drug War, Minus Signs, Persists"

• From the Chattanooga Times Free Press here, "Jail more likely for black drug users, study finds"

• From the Atlanta Journal-Constitution here, "Decades later, war on drugs is still a loser"

NPR coverage of cocaine developments

NPR yesterday broadcast these two interesting pieces on All Things Considered about the war on cocaine:

• Holes Found in U.S. Claims of a Drug-War Win
• Mom Serving 19 Years in Crack Case May Get Break

Here is the set-up for the second piece, which has a sentencing focus:

Nerika Jenkins was working as a home health care nurse and raising her daughter when she was arrested. She had delivered crack for her drug-dealer boyfriend more than once and was paid for it. She was sentenced to 19 years in a federal penitentiary — twice the time of others in her boyfriend's drug circle. Why? She didn't plead guilty, and her lawyer told her not to cooperate.

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

Does reefer no longer inspire madness?

Time magazine has this interesting new article entitled "Mellowing Out on Marijuana."  Here is how it starts:

Those Rocky Mountains are getting higher. Two municipalities — Denver, Colorado, and the small town of Hailey, Idaho — passed pro-marijuana measures on election day this week, joining a growing number of liberal localities that are reducing or removing penalities on using pot. It's part of a slowly evolving populist rehabilitation of the drug. San Francisco, Oakland and Santa Monica in California, along with Missoula, Montana, and Seattle, Washington, have previously passed laws that give the lowest priority to enforcing existing marijuana laws.

Federal regulations, which supercede local ordinances, continue to prescribe heavy penalties — even in some cases death — for major dealers of illegal drugs, including marijuana.  The federal penalty for possession of even a miniscule amount is a misdemeanor punishable by one year in prison and $1,000. Penalties are higher with cultivation, sale and crossing state lines.  However, magistrates generally use state and local laws as sentencing guidelines — unless there is federal intervention, which doesn't occur in every drug case because they would increase court time and costs.

Perceptive public perceptions and political opportunities

A helpful reader pointed me to some recent Gallup poll results concerning public perception of crime rates and drug problems.  Here are links and highlights from these recent polls:

On crime, this Gallup poll report is headlined "Perceptions of Crime Problem Remain Curiously Negative: More see crime worsening rather than improving."  This Gallup report makes much of the fact that "Americans have a decidedly negative outlook about crime" even though overall crime rates "have generally leveled off at extremely low numbers."  But, Gallup's poll question asked about perceptions of crime in the last year, and the latest FBI yearly report shows a roughly 2% increase in violent crime.

On drugs, this Gallup poll report is headlined "Little Change in Public's View of the U.S. Drug Problem: More than 7 in 10 Americans say nation's drug problem is very serious."   This Gallup report details that "the vast majority of Americans [are] saying the problem of illegal drugs in the United States is very serious," but "only about one in three Americans [believe that government efforts have] made progress in this area."

Beyond being impressed with the public's perceptiveness, these result would appear to present real political opportunities for those interested in sounder crime and sentencing policies.  Read together, these polls suggest that the public is primarily concerned with violent crimes and that most Americans view the government's use of harsh sentences in the "war on drugs" to be a failure.  In turn, the public ought to be very receptive to campaigns that promise dramatic reductions in sentences for non-violent drug offenders so that resources could be more effectively concentrated on (a) drug treatment programs, and (b) police and correctional resources devoted to preventing and responding to violent crimes and offenders.

Some related posts:

• New Sentencing Project report on the "war on drugs"
• Politics and the war on drugs
• SF Mayor Gavin Newsom: "End this war on drugs."
• A gendered perspective on the war on drugs
• Lies, damn lies and FBI crime statistics
• Disconcerting rise in violent crime rates
• How the war on terror impacts the politics of crime

Ohio moving toward crack/powder equality by raising sentences

This local article, entitled "Ohio Senate equalizes penalties for crack, powdered cocaine," spotlights that cocaine sentencing equality is politically feasible if it involves raising sentences. Here are the highlights:

Those nabbed with powdered cocaine would face the same harsh penalties as those caught with crack cocaine, under a bill passed unanimously by the Ohio Senate on Tuesday. 

Legislation ending the racially loaded distinction between powdered cocaine and crack cocaine has been sought by Ohio's black delegation at the Statehouse over the past decade. What tipped the scales in favor of this bill this session was a "broader understanding" that the drug problems in Ohio extend beyond city street corners, said the bill's sponsor.  Also, the bill was tweaked to bring up the penalties for powdered cocaine rather than ratchet down the penalties for crack cocaine....

"We've got a growing problem in our rural areas of the state, and many of these members are well aware of the problem," said State Sen. Ray Miller, a Columbus Democrat who sponsored the bill. "Fundamentally, equalizing the penalties at a higher level as opposed to bringing them down was key to passage," Miller said.

Under current state law, penalties for crack cocaine are far harsher than those for powdered cocaine. For example, a person caught with only 25 grams of crack can be convicted of a first-degree felony, while it requires at least 500 grams of powdered cocaine to face the same sanctions. Urban lawmakers have long contended the distinction was racially and economically biased, as the state's crack-cocaine problem is largely based in poor and minority areas.

State Sen. Bill Seitz, a Cincinnati-area Republican, voted for the bill but said he was concerned by a nonpartisan analysis that put costs of additional incarceration at $25 million or more per year from the harsher penalties. "That's real money," he said. "And that's what happens when we equalize penalties at a higher rate."

In the SL&P mailbag: " Unequal under Law"

I am not quite sure whom to thank, but I am grateful for getting a free copy of this new book from The University of Chicago Press by Doris Marie Provine entitled "Unequal under Law: Race in the War on Drugs."  Here is the blurb from the publisher:

Race is clearly a factor in government efforts to control dangerous drugs, but the precise ways that race affects drug laws remain difficult to pinpoint. Illuminating this elusive relationship, Unequal under Law lays out how decades of both manifest and latent racism helped shape a punitive U.S. drug policy whose onerous impact on racial minorities has been willfully ignored by Congress and the courts.

Doris Marie Provine’s engaging analysis traces the history of race in anti-drug efforts from the temperance movement of the early 1900s to the crack scare of the late twentieth century, showing how campaigns to criminalize drug use have always conjured images of feared minorities.  Explaining how alarm over a threatening black drug trade fueled support in the 1980s for a mandatory minimum sentencing scheme of unprecedented severity, Provine contends that while our drug laws may no longer be racist by design, they remain racist in design.  Moreover, their racial origins have long been ignored by every branch of government. This dangerous denial threatens our constitutional guarantee of equal protection of law and mutes a much-needed national discussion about institutionalized racism — a discussion that Unequal under Law promises to initiate.

Some recent related posts:

• NYT commentary on race and justice
• Another strong piece about race and justice
• Obama talking about serious sentencing reform
• Politics and the war on drugs
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• What should we learn from the Jena 6 controversy?

Major media coverage of crack disparity

The Sentencing Project has effectively assembled here a lot of the major media coverage of crack sentencing issues in the wake of the Supreme Court argument in Kimbrough.  Here is how the assembly is set up:

As the national debate over the excessive penalties prescribed under the federal sentencing guidelines for low-level crack cocaine offenses has infiltrated Congress, the advocacy community and now the U.S. Supreme Court, major media are offering broad commentary on the issue. Ongoing coverage includes editorials addressing disparity concerns, the science behind the effects of crack and powder, and mandatory minimum sentencing issues.

Some recent related posts:

• Latest FSR issue covers crack sentencing
• Obama talking about serious sentencing reform
• "Crack Sentencing Is Wack"
• Taking a crack at fairness in crack sentencing
• New USSC crack guidelines and report index

SF Mayor Gavin Newsom: "End this war on drugs."

Thanks to TalkLeft, I see from this news report that San Francisco Mayor Gavin Newsom yesterday came out swinging with potent advocacy against the "war on drugs."  Among other strong statements, Newsom said "shame on my party, the democratic party, because they don't have the courage" to do anything about harms from the drug war.   Here's a bit more:

San Francisco Mayor Gavin Newsom proclaimed the nation's war on drugs a total failure and insisted the crime rate would go down if the government spent money on treatment as opposed to jailing people with drug problems.

"If you want to get serious, if you want to reduce crime by 70% in this country overnight, end this war on drugs," he told reporters at City Hall on Thursday. "You want to get serious, seriously serious about crime and violence end this war on drugs."  The mayor maintained local jails are overcrowded with people incarcerated for drug offenses, taking up room that could be used to hold more violent criminal offenders.  He said violent criminals with lengthy felony records are being turned loose, too often.

Seems like more proof to me that we are getting ever closer to a tipping point on tough-on-crime attitudes and undue emphasis on incarceration as the "solution" to every perceived problem.

Some recent related posts:

• New Sentencing Project report on the "war on drugs"
• Politics and the war on drugs
• Could prison nation be approaching a tipping point?
• Congressional hearing on mass incarceration
• More on the JEC hearing on mass incarceration
• Obama talking about serious sentencing reform
• "Why Are So Many Americans in Prison?"
• Another strong piece examining incarceration nation

New magazine launches with piece on crack sentencing

I received word today of the launch of a new publication, Human Nature magazine, which can be accessed at this link.  Included in a number of intriguing looking articles in the first issue is this piece about mandatory minimum crack sentencing, which is authored by publisher/executive editor Christopher Windham.  The story is entitled "Doing The Right Thing: After 20 Years, the Debate Over Mandatory Minimum Sentencing Laws for Cocaine Heats Up," and here is one of many notable passages:

The federal mandatory minimum sentencing laws have also had a profound affect on African-American women.  For example, the incarceration rate for African-American women for all crimes has increased by 800% since 1986 compared to 400% for women of all ethnicities, largely due to drug convictions. Since federal judges have little or no flexibility to consider the reasons why women are involved in the drug trade, such as domestic violence or financial dependency, they often receive the same or harsher sentences as major drug traffickers, policy experts say.

New Sentencing Project report on the "war on drugs"

I just received this notice in my e-mail in-box:

The Sentencing Project has released a new report that examines the burden of the "war on drugs" on the criminal justice system and American communities.  "A 25-Year Quagmire: The War on Drugs and Its Impact on American Society" assesses the strategy of combating drug abuse primarily with enhanced punishments at the expense of investments in treatment and prevention.  The report documents how the drug war has produced a record expansion of prison and jail systems and highlights additional indicators of the war's impact on the criminal justice system and communities....

The report [available here] also provides policy recommendations that can help effectively reinvest government resources in community safety by encouraging comprehensive drug treatment and prevention strategies to address drug addiction.

Another politician learning sentencing realities first-hand

As detailed in this AP article, another prominent politician is learning first-hand about how modern criminal justice systems work.  Here are some details:

Former South Carolina Treasurer Thomas Ravenel, once seen as a rising political star in the Republican Party, pleaded guilty Thursday to a federal charge of possession with intent to distribute cocaine.  Ravenel, 45, admitted during a hearing that he bought cocaine from several different people and said he used the drug sometimes as often as once a week....

Ravenel resigned a month after his June indictment.  He faces up to 20 years in prison and a $1 million fine, though his plea agreement calls for a reduced sentence because he is helping prosecutors with their investigation.  Chief U.S. District Judge Joseph F. Anderson Jr. said Thursday that Ravenel's sentence would be based on an amount of cocaine less than 100 grams, part of a plea agreement between prosecutors and Ravenel's attorneys. 

At least one former U.S. Attorney in South Carolina, Rene Josey, said that amount and Ravenel's cooperation means he could never spend one day in prison.  "Generally the more somebody cooperates, the more people they rat on, the more a judge is going to depart" from federal sentencing guidelines, said Josey, a lawyer now in private practice who served as U.S. Attorney in the 1990s. "If he doesn't get jail time, I don't think that would be unrealistic."

Ravenel will remain free on a $100,000 unsecured bond until he is sentenced in about two months.  He pleaded guilty to possessing with intent to distribute less than 500 grams of cocaine. Prosecutors have said he bought the cocaine to share with friends, not to sell....  U.S. Attorney Reggie Lloyd said Thursday that there was no evidence Ravenel had used the drug in his government office or while carrying out his duties as state treasurer.

The realities of drug-free zones

A helpful reader passed along this interesting article from Florida, entitled "Drug-free zones target blacks unfairly, critics say," discussing the realities of drug-free zones.  Here are some snippets:

On Boynton Beach's Martin Luther King Boulevard, two signs warn that this is a "drug-free school zone," while the sign down the block states that this is a "drug-free park zone."  Alone, either sign means that people caught selling drugs here can face more serious charges and more prison time than drug sellers elsewhere.

Together, the signs mean two sets of raised charges and penalties. And, although no sign says so, churches in the neighborhood and the convenience store across the street mean dealers could face four criminal charges for one drug transaction.  The same four crimes can also be charged to residents of this street caught with saleable amounts of drugs in their homes.  That is because people living on this street live within the overlapping circumferences of four invisible thousand-foot circles.

Across Florida, these circles also surround community centers, day-care facilities, colleges, housing projects, and, after a 2005 addition to state drug laws, nursing homes. "Now they're protecting people who can't even leave the premises," said Anthony Calvello, a Palm Beach County public defender who appealed some of South Florida's first drug-free zone arrests to the state's Supreme Court.  "What's the thinking behind all this?"

While lawmakers put them in all 50 states during the past 20 years, researchers have found the zones have not slowed drug selling.  "The premise was to protect certain places and drive drug dealing away from vulnerable people," said William Brownsberger, a former prosecutor and policy analyst, who in 2001 completed the first critical study of the law in Massachusetts. "But when every place is special, no place is special. What the laws do is lock people up for exorbitant periods of time for relatively low-level crimes."

Police, weary of arresting and rearresting drug dealers, say any law that keeps criminals off their streets for longer is valuable to them.  Opponents of the law say the money now spent on longer prison sentences could be better spent on drug treatment and entrepreneurial training.

Some related posts about drug-free zone laws:

• Questioning Utah's drug-free zone laws
• NJ Commission releases major report on drug-free zones
• Important drug-free zone report
• Important work on drug sentencing in New Jersey

Rhode Island discussing elimination of mandatory minimum drug sentences

This thoughtful and inforative local news article indicates that Rhode Island may join a growing number of states eliminating or reducing the severity of its mandatory minimum drug sentencing provisions.  Here are some basics:

Before adjourning next week, the General Assembly may make a major revision to state drug laws, doing away with mandatory minimum sentences.  A bill to that effect is moving through the state Senate; House leaders said yesterday they are open to the idea.

"Judges have a handle on who should be locked up for excessive amounts of time," says Sen. Harold M. Metts, D-Providence, the sponsor of the bill scheduled for a vote in the Senate Judiciary Committee today.  "There's some people that need to be locked up for that amount of time, and there's other people that can reclaim their lives."

The concept of restoring judicial discretion has support from Governor Carcieri, judges and the state police.  However, Metts' bill may meet opposition because it would also significantly reduce the maximum sentences for drug charges.

Eleventh Circuit confirms statutory safety-valve is not discretionary

The Eleventh Circuit in US v. Quirante, No. 06-13527 (11th Cir. May 21, 2007) (available here), has confirmed that the "safety valve provision mandated by 18 U.S.C. § 3553(f) and reflected in § 5C1.2 of the guidelines is not discretionary.  Its plain terms are plainly mandatory."  Quirante involves quirky facts that produces this potent quotable, but may only produce quitetude for the rare defendant sentenced above the guideline range even when qualifying for the safety valve.

Should SCOTUS now just remand Claiborne in light of the new USSC report?

The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start.  In the hope generating a lawyerly debate, I'll start with these provocative questions:

1.  Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?

2.  Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?

Put simply, the new report and amendments from the USSC provides powerful new evidence about the reasonableness of crack sentences, especially for low-level offenders like Mario Claiborne.  Though I thought that Claiborne's below-guideline sentence was reasonable before the USSC latest analysis, the USSC report provides a lot of new information and perspective on any decision to give a below-the-old-crack-guideline sentence.

As question 2 suggests, this issues seems lively enough to justify soliciting input from the parties.  And, in my view, some (or all) of the lawyers might reasonably decide their client's interests would be best served by a simple remand without SCOTUS consideration on the merits. 

(Of course, I would be greatly disappointed if the Supreme Court does not fully address post-Booker sentencing realities this term.  But SCOTUS can and will speak to many post-Booker issues in Rita even if it were to remand Claiborne without any discussion of the merits.)

Conclusive proof old crack guidelines unreasonable

Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments.  (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)

The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable.  Consider these paragraphs (and especially the highlighted sections):

Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.

The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems.  The Commission has concluded that the manner in which the Drug Quantity Table in §2D1.1 was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio....

Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses.  The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems.

This fully up-to-date and expert analysis from the USSC provides, in my view, conclusive evidence that a sentence imposed within the old crack guidelines is NOT likely to serve the purposes of punishment Congress set forth in 3553(a)(2).  Consequently, each every defendant sentenced within the old crack guidelines has a very strong basis for arguing on appeal that his sentence is unreasonable (and certainly that a presumption of reasonableness should not apply to any within-the-old-crack-guideline sentence).

Related posts on the USSC new crack work:

• USSC provides (yummy?) half-a-loaf crack amendment
• Why the USSC's new crack work is soooooo significant
• How will the new USSC crack work impact present (and past) cases?
• Previewing the (quite unpredictable) new federal politics of crack sentencing

Maryland Gov debating drug sentencing reform

Thanks to the always great Corrections Sentencing, I saw this strong article from yesterday's Washington Post about Maryland Gov. Martin O'Malley's uncertainty about signing a bill that would make twice-convicted drug dealers eligible for parole.  Here some highlights from the article:

Twenty-five years ago, Maryland joined a national movement to stem the rising drug trade, requiring sentences of 10 to 40 years for drug dealers.  But locking up the hard-to-reform offenders with fixed sentences did little to prevent their re-arrest and even less to address the addiction that led to their crimes.

O'Malley (D) said last week that he is reviewing the bill and is "very much in favor of drug treatment."  But he faces a conflict between his liberal sensibilities and his experience as a two-term mayor of Baltimore, where he saw daily homicides committed by drug addicts. "Anyone who doubts that drug distribution is a violent crime need only look at the morgues of this state," he said.

The Legislative Black Caucus, concerned that African Americans make up a majority of defendants jailed on drug charges, made House Bill 992 a top priority this year, but it was still among the most divisive of the just-concluded legislative session.... The measure reflects a bipartisan shift in the politics of crime in Maryland, where corrections officials estimate that drugs played a role in the offenses of 70 percent of 22,692 state inmates....

On the Senate floor last month, two Republicans said they favored rehabilitation over punishment. "My thinking has completely changed," said Sen. Larry E. Haines (R-Carroll), telling colleagues of his recent work with addicts. "These people need treatment."

It's the same conclusion drawn in the past four years by 22 states, including Michigan, Texas and New York, that have rolled back mandatory minimum drug sentences or restructured penalties.  At the federal level, the U.S. Sentencing Commission recommended last week that Congress reduce minimum sentences for first-time crack cocaine convictions.  House leaders are expected to hold hearings on the issue....

The bill's original language included funding for treatment. But it came to the floor of both chambers with none in a year with little new spending.  This stirred concern among opponents, who said it would be irresponsible to parole drug offenders without a safety net.  "I'm not prepared to gamble with public safety by letting these people get paroled early and hoping they get treatment," said Del. Christopher B. Shank (R-Washington), the minority whip.

The number of drug offenders given fixed sentences in Maryland is relatively small, about 100 people a year, according to the Justice Policy Institute, a national advocacy group.  But public defenders say the system encourages prosecutors to push thousands more defendants into plea bargains to avoid lengthier sentences.

More great NJ drug sentencing work

As detailed in this New York Times article, the New Jersey Commission to Review Criminal Sentencing is about to release some important reports on drug sentencing in the Garden State.  Here are excerpts from the Times article:

A state commission plans to recommend on Friday that New Jersey's therapeutic drug courts, which allow offenders to avoid jail by getting treatment, be expanded to include people with more than two previous offenses. A report by the New Jersey Commission to Review Criminal Sentencing said that 68 percent of offenders remained in their treatment programs in state drug court cases since 2002.

The report also calls on the State Legislature to give drug court judges more discretion in dealing with those who relapse, and for the courts to provide incentives and rewards like shortened probation and decreased court fees.  "Our prisons are burgeoning with a population that cannot be helped or prevented from reoffending if substance abuse is not addressed in a comprehensive, community-based manner," the report said....

In a separate report, also to be released on Friday, the 15-member commission on criminal sentencing will recommend that the boundaries around schools, where there are mandatory penalties in New Jersey on convictions for drug possession or sales, be reduced to 200 feet from 1,000 feet.

UPDATE:  An official press release and links to the new reports can now be found here.

Minnesota SG Commission urging drug sentencing reforms

As detailed in this local news story, the Minnesota Sentencing Guidelines Commission is urging in this new report a rehaul of the state's drug sentencing laws.  Here are the basics from the news story:

Minnesota's drug laws might be too harsh and the state should consider reducing prison terms for users and small-time dealers, a powerful sentencing commission contends.  The provocative stance from the Minnesota Sentencing Guidelines Commission would have been improbable a decade ago, when politicians and prosecutors often spoke about zero tolerance and a "war on drugs." But the idea of reforming drug laws, including the possibility of reducing recommended sentences for certain offenses, has been gaining traction among lawmakers, judges and prosecutors.

The sentencing commission put forward a proposal that would cut recommended sentences on some drug offenses nearly in half. First-degree offenders convicted for the first time could see recommended sentences reduced from seven years to four years.

A bill that passed the state Senate last month includes a provision ordering a drug-sentencing study. The review would be done next year and could include new sentencing guidelines that would automatically take effect unless lawmakers act to block them. Backers of a review said the state must examine whether the lengthy prison terms for drug offenses recommended under current sentencing guidelines are fair, effective and worth the cost. Drug offenders represent an increasing percentage of the state's prison population.

"We've got too many drug folks in prison," said Hennepin County Attorney Mike Freeman. "We need to do something about it. We need to have an enlightened dialogue that includes treatment." Dakota County Attorney James Backstrom said he would oppose lighter sentences. He said violent crime and other problems stemming from drug use and dealing can "overwhelm communities."

Delaware House votes to repeal drug mandatories

In a notable sign of the sentencing times, the Delaware state House of Representatives passed a bill yesterday to eliminate minimum mandatory sentencing for drug offenders.  Here are details from this fascinating local article:

After a lengthy debate that pitted police officers and prosecutors against defense attorneys and retired judges, the state House of Representatives passed a bill Tuesday eliminating minimum mandatory sentencing for drug offenders.  House Bill 71, which passed 26-13 after a two-hour debate, would change mandatory prison sentences to presumptive terms left to the discretion of the sentencing judge.

Under existing state law, a judge must impose the minimum mandatory sentence provided in the statute.  The presiding officer cannot weigh any mitigating factors to possibly lessen the prison term. “Minimum mandatory sentencing transfers sentencing power from judges to the prosecuting attorneys,” said Edmund N. “Ned” Carpenter II, a former defense attorney and deputy attorney general and past president of the Delaware State Bar Association. “It gives the prosecuting attorney the power to threaten the defendant if he doesn’t plead guilty to various charges.”

House Speaker Rep. Terry R. Spence, R-New Castle, said he sponsored HB 71 because the debate surrounding minimum mandatory sentencing has been brewing for several years but never made it to the House floor. “Hearing both sides, I felt that the time has come this year for this issue to be fully discussed on the floor,” Rep. Spence said. “The sentiment from the majority of the House was to put the final decision in a judge’s hands.”

But members of the law enforcement community, including the attorney general’s office and the Delaware Police Chiefs’ Council, said the sentencing statute applies mainly to the “worst of the worse,” and is an effective tool for them to use.  State Prosecutor Richard Andrews said of 6,300 drug arrests in 2005, minimum mandatory sentencing was only applied to 133 convicts.  “Mandatory sentencing is being handed out to people who rightly deserve to spend at least a couple years in prison,” Mr. Andrews said. “By weakening the drug laws, our streets are going to become more violent and we will see more crime,” said Newport Police Chief Michael Capriglione, president of the Delaware Police Chief’s Council....

Retired Wilmington police officer Rep. Dennis P. Williams, D-Wilmington, said minimum mandatory sentencing provides a necessary tool for police to get additional information from suspects and often leads to bigger arrests. “They put themselves in this position,” Rep. Williams said. “I don’t see the big issue here. This is just a lot of fanfare. “It’s a bad piece of legislation.”

Former state Supreme Court justice Joseph T. Walsh said judges already have a great deal of discretion in sentencing when it comes to capital murder cases. The judge can go against a 12-0 recommendation for death. Judges, Mr. Walsh said, take that responsibility seriously. “In each of those situations, I held a person’s liberty literally in my hand,” Mr. Walsh said. “I had an obligation to impose a fair sentence, fair to the defendant and fair to society. “It’s a very difficult balance. With the advent of minimum mandatory sentencing, there is no balance. The focus is entirely on the offense.”

UPDATE:  This interesting article details that "Louis J. Freeh, the nation's former top cop and a self-described 'law enforcement guy,' is leading an effort in Delaware to repeal state laws that require minimum prison terms for convicted drug offenders."

Are better crack sentences on the horizon?

This USA Today article, entitled "Lawmakers consider lessening crack penalties," provides some encouraging news for those hoping for congressional action on crack sentencing.  Here are a few details:

Momentum is building in Congress to ease crack cocaine sentencing guidelines, which the American Civil Liberties Union and other critics say have filled prisons with low-level drug dealers and addicts whose punishments were much worse than their crimes. 

Federal prison sentences for possessing or selling crack have far exceeded those for powder cocaine for two decades. House Crime Subcommittee chairman Robert Scott, D-Va., a longtime critic of such sentencing policies, plans to hold hearings on crack sentences this year. In the Senate, Republican Jeff Sessions of Alabama is drawing bipartisan support for his proposal to ease crack sentences. "I believe that as a matter of law enforcement and good public policy that crack cocaine sentences are too heavy and can't be justified," Sessions says. "People don't want us to be soft on crime, but I think we ought to make the law more rational."...

Sessions' bill would lessen the sentencing disparity by increasing punishments for powder cocaine and decreasing them for crack. Crimes involving crack would still draw stiffer sentences, but the difference would not be as dramatic. The bill has drawn support from Democratic Sen. Ken Salazar, a former state attorney general from Colorado, Democratic Sen. Mark Pryor, a former state attorney general from Arkansas, and Republican Sen. John Cornyn, a former Texas Supreme Court justice and attorney general. In the House of Representatives, two bills calling for Congress to equalize the sentences for powder cocaine and crack were filed in January.

"We're going to address all the mandatory minimums," said Scott, chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security. "The crack cocaine is probably the most egregious because of its draconian number of years for relatively small amounts." Opposition to weaker sentences has come from police, prosecutors and law enforcement agencies such as the Justice Department and the Drug Enforcement Administration.

UPDATE:  Marc Mauer and Kara Gotsch of The Sentencing Project have this new commentary, entitled "Seeking Justice In The Drug War," that calls for congressional action on crack sentencing.  Here is the final paragraph:

With champions for criminal justice reform like Rep. John Conyers,D-Mich., and Senator Patrick Leahy, D-Vt., heading the judiciary committees in Congress, the opportunity to redress the misguided crack sentencing policy is upon us.  Hearings before both committees are long overdue in this arena and would provide the necessary evidence to dispel the misinformation and hysteria that clouded the public debate on crack cocaine in the past.  These myths have done a disservice to developing responsible drug policy, while exacerbating the tragic racial disparities that plague our prison system.  Now is the time for congressional attention and action.

A cost reallocation approach to DP abolition

Thanks to C&C, I see this fascinating AP report on a Colorado proposal to abolish the death penalty in order to free up monies to solve cold cases.  Here are some details:

A House committee voted Wednesday to abolish the death penalty and use the savings from prosecuting and defending death penalty cases to look at old unsolved cases after witnesses said they wanted police to catch the people who killed their loved ones.  Rep. Paul Weissmann, D-Louisville, said the money spent defending and prosecuting death penalty cases could be better used to resolve 1,200 unsolved murders since 1970.

Weissmann, a Democrat from Louisville, said the state could save about $2 million a year that is spent prosecuting and defending death penalty cases. He said only one person has been executed in Colorado since 1967. "To me, that's a terrible bang for the buck," Weissmann said.

The House Judiciary Committee approved the measure on a 7-4 vote and sent it to the House Appropriations Committee.

A gendered perspective on the war on drugs

This article from the North County Times (CA), entited "Women are silent casualties of war on drugs," provides an interesting and thoughtful perspective on how tough sentencing laws have particularly impacted women. Here is one data highlight from the article:

America's 25-year war on drugs has taken an exorbitant toll, both human and economic.  Drug arrests have tripled since 1980; as a result, the number of jailed drug offenders in 2000 equaled the total number of inmates in U.S. prisons and jails 25 years ago, according to The Sentencing Project, a research and advocacy group.

By most estimates, women have paid the highest price.  Between 1977 and 2001, figures from the Women's Prison Association show a 592 percent increase in the number of women jailed, from 12,279 to 85,031.  According to the WPA, the growth "corresponds directly to the mandatory minimum sentencing laws in effect since the early 1970s. Since more women are convicted for nonviolent, drug-related crimes than for any other, these sentencing policies have had a particularly profound effect on women."

Drug reform in the new Congress

The Drug War Chronicle has this interesting new piece entitled "Drug Reform and the Democratic Congress: What's Going to Happen?". Here is a snippet:

There is a whole long list of drug reform-related issues that the Democratically-controlled Congress can address, and hopes are high that after a dozen years of Republican rule on Capitol Hill, progress will come on at least some of them.  But will the Democratic Congress really turn out to be Santa Claus, bestowing gifts on a movement long out in the cold, or will it turn out more like the Grinch, offering up tantalizing glimpses of the goodies only to snatch them away?

Transcripts of USSC crack hearings

The US Sentencing Commission has now made available at this link the full hearing transcript from the November 14, 2006, public hearing on cocaine and federal sentencing policy at the Georgetown University Law Center.  The transcript runs 300+ pages, and kudos will go to any readers who pinpoint notable passages in the comments.

Some related posts on crack sentencing:

• Extended account of USSC crack hearing (with lots of links)
• Two decades of crack(ed) sentencing
• Noticing different legislative reactions to meth and crack
• Nice Slate commentary on crack sentencing
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack

Federal cocaine sentencing reform dog not barking

Perhaps it is a good sign for future reforms that the AP has this new lengthy article discussing the failure of Congress to do anything about the crack/powder federal sentencing disparity.  Here is a snippet:

Congress is headed toward adjournment again this year without acting on what is widely viewed as an indefensible sentencing disparity between federal drug offenses involving crack and powder cocaine.   Although nearly everyone agrees that the uneven treatment the two drugs receive under federal sentencing laws is unfair, Democrats and Republicans have been locked in a stalemate for more than a decade over the proper fix.  That stalemate, unlikely to break before Democrats regain control of Congress, has left in place a system that frequently sends black, inner-city defendants to jail for more than a decade over quantities of crack that would fetch far shorter sentence for powder-cocaine offenders....

With Democrats taking control of Congress, incoming Senate Judiciary Committee Chairman Patrick Leahy of Vermont and fellow committee Democrats will likely take up the issue soon, said Tracy Schmaler, Leahy's spokeswoman.  But with narrow majorities in both the House and Senate, it remains unclear whether any of the Democratic proposals could pass.

UPDATE:  Over at BlackAmericaWeb.com, one can now find this original article entitled "Many Hope Democrats' Majority Results in End of Crack vs. Cocaine Sentencing Disparities."

"Is Crystal Meth the New Crack?"

The headline of this post is the title of this week's episode of the "Justice Talking" show, which features an extended debate on whether the methamphetamine problem is an "epidemic."  The show also includes interviews with recovering addicts and drug treatment staff, aas well as discussions of the impact of methamphetamine on the Navajo Nation and the gay community.  Here is the overview:

Crystal methamphetamine has been getting a lot of media and political attention in the last few years, with the Combat Meth Act signed by President Bush in March 2006 adding to the focus.  This new federal law requires cold medicines containing pseudoephedrine be put behind the pharmacy counter because those medications can be turned into meth.  States are using creative tools like building meth prisons while others are waging shock-and-awe prevention campaigns.  But is meth a national epidemic or a regional problem? Join us on this edition of Justice Talking as we look at how the justice system is responding crystal meth.

Some related posts:

• Significant meth report from The Sentencing Project
• Noticing different legislative reactions to meth and crack
• Meth offender registries all the rage

Extended account of USSC crack hearing

At this link, the folks at The Sentencing Project have a very helpful extended account of last week's US Sentencing Commission Public Hearing on "Cocaine and Federal Sentencing Policy — 2006" (background here and here).  On a related front, Legal Times has a long and thoughtful piece here (subscription required) on crack sentencing as the DC Circuit gears up for an argument on the ratio issue.

Some recent related posts:

• An early report from the USSC crack hearing
• The Justice Department's crack testimony
• Commentary on crack sentencing as USSC hearing approaches
• Pondering the USSC's upcoming crack/powder hearing
• Key questions for USSC: Now what...?

Milton Friedman's thoughts on the "war on drugs"

As detailed in this New York Times obituary, famed economist Milton Friedman died yesterday.  The Times describes Friedman as "the grandmaster of free-market economic theory in the postwar era and a prime force in the movement of nations toward less government and greater reliance on individual responsibility."  A terrific reader sent me this link to an open letter Friedman wrote in 1989 to then federal "drug czar" Bill Bennett about the escalation of the "war on drugs."  It is a fascinating read (especially in the wake of this week's USSC crack hearing).  Here are choice snippets:

The path you propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse.  The drug war cannot be won by those tactics without undermining the human liberty and individual freedom that you and I cherish.

You are not mistaken in believing that drugs are a scourge that is devastating our society. You are not mistaken in believing that drugs are tearing asunder our social fabric, ruining the lives of many young people, and imposing heavy costs on some of the most disadvantaged among us.  You are not mistaken in believing that the majority of the public share your concerns.  In short, you are not mistaken in the end you seek to achieve. Your mistake is failing to recognize that the very measures you favor are a major source of the evils you deplore....

Drugs are a tragedy for addicts. But criminalizing their use converts that tragedy into a disaster for society, for users and non-users alike....  Had drugs been decriminalized 17 years ago, "crack" would never have been invented (it was invented because the high cost of illegal drugs made it profitable to provide a cheaper version) and there would today be far fewer addicts. The lives of thousands, perhaps hundreds of thousands of innocent victims would have been saved, and not only in the US.  The ghettos of our major cities would not be drug-and-crime-infested no-man's lands. Fewer people would be in jails, and fewer jails would have been built....

Alcohol and tobacco cause many more deaths in users than do drugs.  Decriminalization would not prevent us from treating drugs as we now treat alcohol and tobacco: prohibiting sales of drugs to minors, outlawing the advertising of drugs and similar measures.  Such measures could be enforced, while outright prohibition cannot be.  Moreover, if even a small fraction of the money we now spend on trying to enforce drug prohibition were devoted to treatment and rehabilitation, in an atmosphere of compas