Sunday, May 27, 2018

Examining thoughtfully modern trend to prosecute overdose deaths as homicides

The New York Times has this lengthy new article headline "They Shared Drugs. Someone Died. Does That Make Them Killers?".  The subheadline highlights the basic theme of the piece: "Prosecutors are increasingly treating overdose deaths as homicides, but they aren’t just going after dealers.  Friends, family and fellow users are going to prison."  To its credit, the Times here tried to dig into qualitative and quantitative stories here, and I recommend this piece in full.  Regular readers know that I have lamented, such as in prior posts here and here, that reporting on the decision to use homicide laws in overdose cases often fails to note that many states punish unintentional homicide less severely than the feds punish basic drug dealing.  Though the Times fails in this regard as well, it still provides the most thoughtful account of what surrounds these cases.  Here are excerpts:

As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction.

Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.

Overdose prosecutions, they say, are simply one tool in a box that should include prevention and treatment. But there is no consensus on their purpose. Some believe they will reduce the flow of drugs into their communities, deter drug use or help those with addiction “hit bottom.” To others, the cases are not meant to achieve public policy goals, but as a balm for grieving families or punishment for a callous act. “I look at it in a real micro way,” said Pete Orput, the chief prosecutor in Washington County outside Minneapolis. “You owe me for that dead kid.”

Who owes whom for what is less clear in the case of the Malcolm family in Breckenridge, Colo., where Michael Malcolm’s younger son was charged in the overdose death of his older brother, with whom he shared drugs purchased on the internet. The cost of prosecution and incarceration, Mr. Malcolm said, would have been better spent on addiction treatment that the family could not afford. “It’s kind of like blaming the leaves on the tree, you know?” he said. “What about the roots?”

In 15 states where data was available, The New York Times found more than 1,000 prosecutions or arrests in accidental overdose deaths since 2015. Between 2015 and 2017, the number of cases nearly doubled. Dozens more cases were documented in news reports. In all, overdose prosecutions were found in 36 states, with charges ranging from involuntary manslaughter to first-degree murder. In Minnesota, the number of such cases — sometimes referred to as “murder by overdose” — quadrupled over a decade. Pennsylvania went from 4 cases in 2011 to 171 last year after making it easier to prosecute....

Many of those convicted are serving hard time: A Long Island woman whose best friend texted her from a business trip asking for heroin was sentenced to six years after he died taking the drugs she sent him. A former pipe fitter in Minnesota who shot speedballs with a mother of three got 11 years. A Louisiana man who injected his fiancée — both were addicted, his lawyer said — got life without parole....

The concept of overdose prosecutions took hold after the cocaine-related death in 1986 of Len Bias, the college basketball star, two days after he was drafted by the Boston Celtics. A friend, who called 911 when Mr. Bias collapsed, was accused of providing the cocaine, but was acquitted. Soon after, states began passing so-called Len Bias or “drug delivery resulting in death” laws. Louisiana made it second-degree murder. Pennsylvania created a crime punishable by up to 40 years in prison. Congress passed the sweeping 1986 Anti-Drug Abuse Act, which included a mandatory minimum sentence of 20 years for federal cases in which drugs resulted in death or serious injury.

The Len Bias laws were supposed to go after drug dealers — “greed-soaked mutants,” Howell Heflin of Alabama called them on the Senate floor. But the role of dealer is far less clear cut than lawmakers envisioned. The legal definition of drug dealing, or “distribution,” typically covers behavior that is common for even casual users, including sharing, giving drugs away or getting reimbursed for a buy. Under complicity laws, helping to arrange a deal can be treated the same as dealing....

Despite the high cost of imprisonment — $33,000 a year on average, compared with roughly $5,000 to $7,000 for treating addiction with methadone — new Len Bias laws have begun to appear. Delaware enacted one in 2016, and West Virginia did so last year. In Rhode Island, Attorney General Peter Kilmartin has proposed a mandatory life sentence....

In order to gain a better sense of where defendants fit on the user-dealer continuum, The Times looked to Pennsylvania, where overdose prosecutions have soared since a change in the law in 2011 made it unnecessary to prove that the accused had malice toward the victim. The Times examined drug-related death cases filed in criminal court in the first half of last year — 82 cases in all, with 80 defendants. At least 59 of the accused were drug users themselves, according to police reports, court filings and interviews with law enforcement officials and defense lawyers. Roughly half had a relationship with the victim other than that of dealer. That group included six boyfriends, one girlfriend, a cousin, a brother and a son. A few of those charged had tried to save the victims. (Good Samaritan laws protect those who call for help from drug possession charges, but generally not homicide charges.)...

Overdose prosecutions picked up steam under the Obama administration. In 2015, the National Heroin Task Force recommended that cases against heroin dealers whose drugs proved fatal should be prioritized for three reasons: the product might be particularly potent, the prosecutions would serve as a deterrent, and the attention would educate the public about the “severe harm caused by heroin.”...

Even hard-liners like John Walters, the director of the White House Office of National Drug Control Policy under President George W. Bush, question the use of overdose homicide prosecutions without more systematic proof that they reduce drug use and emergency room visits. “In the absence of that, this is all gestures,” Mr. Walters said.

But many law enforcement officers hope that the cases act as a deterrent. When five people overdosed in two months in Twin Lakes, Wis. (population 6,000), the police charged 10 with reckless homicide. “We kind of want to put a bubble around our community and say we don’t — we’re not going to accept this here,” said Adam Grosz, the chief of police. But one of his detectives, Katie Hall, said that the arrests had little effect on supply and demand: “If we can take one off, well, then they just go to the next one.”

Paradoxically, the punitive approach to overdoses is underpinned by the same rationale as the push to treat addiction as a public health issue. In the prosecutorial worldview, a criminal investigation dignifies victims by treating their deaths as crimes instead of sad inevitabilities. “The analogy for me is the dead prostitute,” Mr. Orput said. “You know, years ago, the cop would look and go, ‘Well, that’s what happens,’ and that’s what they’d say with the junkie: ‘That’s why we don’t do drugs.’”

Some of many prior related posts:

May 27, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Sunday, May 20, 2018

US District Judge Bennett explains why meth sentencing guidelines are wrong to treat "drug purity [as] a proxy for culpability"

Long-time readers know that US District Judge Mark Bennett has long made his post-Booker mark with thoughtful opinion explaining why various guidelines ought not merit full respect in light of the purposes of sentencing set forth in 18 USC § 3553(a). Judge Bennett's latest important sentencing work, which a helpful reader made sure I did not miss, comes in US v. Nawanna, No. CR 17-4019-MWB (D. Iowa May 1, 2018) (available here). Like so many of Judge Bennett's opinions, this latest ruling is a must-read for all who follow the federal sentencing system, and it starts and ends this way:

The United States Sentencing Guidelines differentiate between methamphetamine mixture and actual (pure) methamphetamine or "ice."  That difference is the primary basis for the defendant's motion for a downward variance.  Even though he is a first-time drug offender who has never been in prison, he argues that he faces a "breathtakingly high" Guidelines sentencing range of 360 months to life, where the methamphetamine at issue was treated as actual (pure) methamphetamine or ice.  He argues that the harsh methamphetamine Guidelines overstate his culpability and should be rejected on policy grounds.  Specifically, his argument, of first impression for me, is that the methamphetamine Guidelines are based on a flawed premise, set out in U.S.S.G. § 2D1.1, cmt. n.27(C), that drug purity is a proxy for culpability.

The prosecution responds that, although I am free to place whatever weight I wish on the various advisory Guidelines, the defendant's advisory Guidelines sentencing range is appropriate in this case, because it reflects the dangerous role the defendant played in dealing pure methamphetamine . Thus, this case requires me, once again, to consider the question of the merits of the advisory Guidelines sentencing range for a defendant convicted of methamphetamine offenses.  In United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013), I followed the lead of two other federal district judges by reducing a methamphetamine defendant's advisory Guidelines sentencing range by one third, on the basis of a policy disagreement with the methamphetamine Guidelines.  This sort of variance was for low level, non-violent, addict offenders.  This opinion, which supplements my rationale on the record at the defendant's sentencing hearing, explains why I find that a similar reduction, based on a different calculation, is appropriate in this case....

Exercising my discretion to reject the advisory Guidelines sentencing range for methamphetamine offenses on the basis of a policy disagreement, I determined that a downward variance was appropriate in Nawanna's case.  The reasons for rejecting the methamphetamine Guidelines, here, were independent of the reasons for rejecting the methamphetamine Guidelines set out in my decision in Hayes.  Here, I concluded that the methamphetamine Guidelines are based on a flawed assumption that methamphetamine purity is a proxy for role in the offense, which, like Judge Robert C. Brack of the District of New Mexico, I find "is divorced from reality." Ibarra-Sandoval, 265 F. Supp. 3d at 1255.  Nawanna's advisory Guidelines sentencing range of 360 months to life would be greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a).  Instead, for the reasons stated, above, and on the record during Nawanna's sentencing hearing, Nawanna should be sentenced to 132 months incarceration.

May 20, 2018 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Saturday, May 12, 2018

"Predatory Public Finance and the Evolution of the War on Drugs"

The title of this post is the title of this new paper authored by Bruce Benson and Brian Meehan now available via SSRN. Here is the abstract:

US drug policy has a long history of providing revenue for federal, state, and local governments.  Before the War on Drugs, opium and cocaine were legal and medical professionals who prescribed these substances had to pay extra taxes to do so.  This chapter explains how, as the federal government began enforcing outright bans on drugs, law enforcement agencies took advantage of their newly acquired authority to profit.

Today, civil asset forfeiture related to drug crimes provides officers with incentives to use and abuse their authority and increase their revenue by making more drug arrests.  Key takeaways: (1) Drug policy has a long history of providing law enforcement with increased revenues and authority over time. (2) Law enforcement agencies may be targeting the crimes that present the opportunity to raise revenue for their departments rather than the most serious public safety threats.

May 12, 2018 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, May 03, 2018

"The Opioid Crisis and Federal Criminal Prosecution"

The title of this post is the title of this timely new article recently posted to SSRN authored by Rachel Rothberg and Kate Stith. Here are parts of its introduction:

An opioid crisis has swept the United States, ravaging communities across the country. In this Article we examine how federal law enforcement has responded to the crisis, both nationally and in a variety of locales.  We focus in depth, however, on federal investigators and prosecutors in the District of Connecticut, where the epidemic has hit hard....

What role can criminal law — and those who enforce it — play in combatting the opioid crisis?  The Connecticut U.S. Attorney’s Office’s shift in policy represents just one of many federal law enforcement reactions to alarming increases in opioid abuse and overdose deaths.  As opioid users’ tolerance increases and their access to prescription pills dwindle, they often transition to cheaper heroin, and then again to the more powerful synthetic opioids — sometimes unwittingly.  In general, law enforcement has struggled to keep up with the epidemic and the opioid market’s evolving characteristics.

In Part II of this Article we provide an overview of the nationwide, interagency efforts initiated by the Department of Justice in Washington, D.C.  In Part III, we briefly survey a number of strategies pursued by various U.S. Attorney’s Offices.  There are ninety-three U.S. Attorney’s Offices in the United States, and although all of them are part of the Department of Justice, each one is semi-autonomous in deciding which cases to investigate and prosecute.

Then, in Part IV, we narrow our focus to the federal prosecutorial efforts of the U.S. Attorney’s Office for the District of Connecticut.  We focus on the Office’s two main strategies— (1) charging the supplier of an illicit substance resulting in death with the crime of drug distribution; and (2) educating the community, particularly high-school students, about opioid usage — and discuss whether they have implications for the national role of federal law enforcement.  Lastly, in Part V, we address what more might be needed from federal law enforcement going forward to protect communities nationwide from the devastation wrought by opioid proliferation.

May 3, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, May 02, 2018

Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?

Download (11)The question in the title of this post is not satire, but a serious inquiry based on this extended Mic report headlined "Kim Kardashian West has talked to White House about pardoning nonviolent drug offender."  Here are excerpts from the report:

Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense.

The telephone calls, according to a source with knowledge of the conversations, have taken place over the course of the past several months and have picked up in intensity over the last several days.

A representative for Kardashian West confirmed to Mic that she has been in communication with the White House and is working to bring Johnson’s case to the president’s desk. The source with knowledge of the conversations also told Mic that Johnson’s case has been reviewed by White House attorneys.

Johnson, who has been in federal prison since October 1996, has captured international attention from criminal reform activists — and Kardashian West.  Kardashian West first learned about Johnson’s case from a Mic video [available here] published in October.  Kardashian West shared it on Twitter, and the video has since been viewed more than 8 million times.

Shortly after, Kardashian West became involved in trying to free Johnson, who was convicted for her role facilitating communications in a drug trafficking case. In November, Kardashian West enlisted a team of lawyers, including her Los Angeles-based attorney Shawn Holley, to advocate for Johnson’s release.

The two women also have communicated, with Johnson expressing her gratitude toward Kardashian West for her support in a November letter. Still, it appears the only clear path for Johnson’s release would be a presidential pardon or clemency — which could come at odds with Trump’s recent proposal to impose the death penalty for certain drug dealers.

In her October op-ed, Johnson told Mic she became involved in drug trafficking as a way to make ends meet following a particularly rough period in her life: She lost her job at FedEx, where she had worked for 10 years, due to a gambling addiction; she got divorced; and then her youngest son died in a motorcycle accident. “I felt like a failure,” Johnson said. “I went into a complete panic and out of desperation, I made one of the worst decisions of my life to make some quick money. I became involved in a drug conspiracy.”

Johnson was arrested and sentenced to life in prison, with no opportunity for parole. As of May 2018, she has spent over two decades behind bars. For criminal justice reform advocates, Johnson’s case serves as a glaring example of why America’s sentencing laws need reform.

Johnson was one of six prisoners featured in the ACLU’s campaign to end mass incarceration. She has also participated in Skype conversations at top universities including Yale and New York University, as well as at companies such as Google, where Mic first became aware of her story. One of Johnson’s daughters, Tretessa Johnson, told Mic in a video in November that her mother is remorseful and has been a model prisoner during her time behind bars....

President Barack Obama granted clemency to 231 individuals in December 2016, many of whom had similar drug-related charges. Johnson was not one of them. “When the criteria came out for clemency, I thought for sure — in fact, I was certain that I’d met and exceeded all of the criteria,” Johnson told Mic. “Oh my goodness, I had so much support.”

Now, her hope rests with Trump. News of Kushner and Kardashian West’s conversations comes on the heels of multiple reports in recent months that Kushner has been working to pass a bipartisan criminal justice reform bill in Congress, co-sponsored by Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), among others.

For a lot more information about Alice Marie Johnson, check out all the materials assembled here at the CANDO website where she is listed #1 on this list of Top 25 Women who deserve clemency from federal prison.

May 2, 2018 in Celebrity sentencings, Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

Wednesday, April 25, 2018

"6 Months Since Trump Declared an Opioid Emergency, What's Changed?" ... other than AG Sessions "strongly" encouraging capital prosecutions?

The quoted portion of the title of this post is the headline of this notable new Governing article, which provides this answer via a subheadline: "Some health officials say nothing. Members of Congress, meanwhile, are taking matters of money for the drug crisis into their own hands." Here are excerpts:

On Oct. 26 last year, President Donald Trump declared the opioid epidemic -- which took more than 64,000 lives in 2016 -- a national emergency.  More specifically, he declared it a public health emergency, which can be used to ease some federal rules for the U.S. Department of Health and Human Services (HHS) to, among other things, make more people eligible for Medicaid or dispatch more medical professionals to the areas hit hardest by the drug crisis.

The declaration has already been extended twice, most recently on Tuesday.  But health policy experts say it's unclear what -- if any -- HHS rules have been waived since the declaration.  Moreover, Trump did not directly offer state and local governments more money to combat the drug crisis.  Because of this, some say the declaration has been nothing more than an empty promise.  "We’ve seen no effect here in Baltimore from the emergency [declaration]," says Leana Wen, the city's health commissioner. "We could save so many more lives if we had more resources. We don’t need any more rhetoric."  Wen worked with members of Congress to take matters of money into their own hands....

There are at least seven other bills floating around Congress to address the opioid epidemic. The most comprehensive with the most bipartisan support is the Comprehensive Addiction and Recovery Act (CARA) 2.0. It offers $1 billion more than current federal funding for treatment and prevention programs and would mandate a three-day limit for first-time opioid prescriptions.

Frustration over federal inaction is even boiling over within the president's own party.  Before Trump traveled to New Hampshire to talk about opioids, the state's Republican governor, Chris Sununu, reportedly confronted White House officials about the lack of funding to back up the emergency declaration.  "The president cannot come to New Hampshire without a plan that has substance," Sununu told White House aides, according to CBS News.

Trump still gave his scheduled speech there in March to unveil new initiatives to fight the opioid epidemic.  He focused on cracking down on illegal immigration and drug dealers. Since then, Attorney General Jeff Sessions has directed federal prosecutors to seek the death penalty for some drug traffickers....

His focus on law-and-order tactics exasperated many health officials. "I'm deeply concerned with the focus on incarceration. It goes against what science says, which is that addiction is a disease.  We know that treatment works.  The war on drugs doesn't," says Wen.

The plan the White House released after Trump's New Hampshire speech did include several bipartisan, health-focused efforts to combat the crisis -- but most of the ideas weren't new and there were few specifics about how to pay for them.  Before the emergency declaration, Trump assembled an opioid commission to explore the best tactics the federal government could deploy to stem the tide of overdoses.  A final report was released in November, with some bipartisan recommendations, such as removing barriers to treatment and increasing access to drug courts that divert people struggling with addiction from jail.

But even those who worked on the commission's 138-page report have said that the administration has no plan to systematically address the epidemic.... There have been some encouraging signs, however, that the federal government is serious about addressing the opioid epidemic. The Trump administration has continued an Obama-era policy of approving waivers to let their Medicaid programs pay for addiction and mental health treatment in facilities larger than 16 beds -- which is normally prohibited under federal law. So far, the Trump administration has approved waivers from Indiana, New Jersey, Utah, Virginia and West Virginia. Five states -- Arizona, Illinois, Kentucky, Michigan and Wisconsin -- have pending waivers still.

And last month, Congress passed a federal spending bill that includes a $3.3 billion increase in funding for the opioid crisis. The $3.3 billion will go toward prevention, treatment and law enforcement activities across the Centers for Disease Control and Prevention (CDC), Substance Abuse and Mental Health Services Administration (SAMHSA), Department of Veterans Affairs and other entities that help state and local governments. Many health policy experts, however, argue that it still isn't enough to make a meaningful impact.  To put that in context, the federal budget for HIV care in 2017 was $32 billion.

The other part of the title of this post is a reminder that it was a full five weeks ago that AG Jeff Sessions issued a "Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions" (full text here) which "strongly encourage[d] federal prosecutors" bringing federal drug prosecutions to "include the pursuit of capital punishment in appropriate cases."  I keep wondering if and when we will see that memo having any real tangible impact.

Roughly speaking, federal prosecutors bring about 400 federal drug prosecutions per week, meaning that there have likely been around 2000 federal drug prosecutions since the AG issued his capital punishment memo.  Even if AG Sessions means by "strongly" encouraging capital prosecutions that only the very worst 0.1% of federal drug defendants should be subject to federal capital charges, we should perhaps have expected to have seen by now two federal drug defendants being subject to a federal capital indictment.  (I am inclined here to recall frequent statements by groups like NAUSAA that that federal system is focused only on "the most dangerous and serious drug traffickers." If this is true, perhaps AG Sessions thinks 1% or even 10% of federal drug prosecutions should include capital charges.  If so, we ought to already be seeing dozens of federal capital prosecutions by now.)

As of this writing, I am not aware of a single new capital drug case since the AG's March memo, though it is certainly possible that some are in the works and that is only a matter of time before we see a lot more federal capital cases.  I know I will be continuing to wonder if, when and how the capital prosecutions that AG Sessions has strongly encouraged will become a reality.

April 25, 2018 in Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (5)

Monday, April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The title of this post is the title of this new paper I have written for a forthcoming issue of the Federal Sentencing Reporter which is now available via SSRN.  Here is the abstract:

States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements.

Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.  Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.   This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.

Cross-posted at Marijuana Law, Policy & Reform.

April 23, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, April 22, 2018

SCOTUS to hear seemingly small sentencing case made slightly bigger by Government's advocate

On Monday afterneed the Supreme Court will hear oral argument in Chavez-Meza v. United States.  Here is the issue presented in the case (via SCOTUSblog):

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

As this statement of the issue reveals, the Supreme Court likely was inclined to add this case to its docket in order to resolve a circuit split over just want amount of explanation is required when judges grant sentence modifications under 18 U.S.C. § 3582(c)(2).  But, it appears that only six months of a nine-year prison term is at issue in this case and, as Susan Klein explains via her SCOTUSblog argument preview, it seems unlikely that even a win for the defendant would be all that consequential for others:

I predict that whatever the Supreme Court does in this case will have little effect beyond amending future sentencing modification forms. A reversal would likely result in little more than a “ritualistic incantation” by the judge that she considered a specific Section 3553(a) factor, or that she considered a specific policy statement issued by the sentencing commission.

Of course, SCOTUS could always decide to use this case to talk up the importance of sentencing explanations, though I doubt even an opinion written with great ambition in this matter would have too much of an impact.  And still, though seemingly a small case, Chavez-Meza is getting an extra bit of attention because the Deputy Attorney General will be arguing the case on behalf of the feds.  This new Wall Street Journal article, headlined "Rosenstein Takes a Pause — to Argue a Case Before the Supreme Court," looks at this angle of the case.  (Last but not least, hard-core Breaking Bad fans might get a weird kick out of the fact that Adaucto Chavez-Meza "distributed methamphetamine in Albuquerque, New Mexico," though a bit later than when Walter White was supposedly cooking up the Blue Sky variety in that part of the world.)

April 22, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Friday, April 20, 2018

Because the calendar suggests I should, here is a round-up of some recent posts from Marijuana Law, Policy & Reform

It has been more than two months since I did a round-ups of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and this post will be on the second such round up in this space in 2018.  And it is a bit cliche to do this round-up on 4/20.  But because given all the recent activity in the marijuana law and policy universe, here are just some (of many) recent legal and policy highlights from MLP&R that sentencing fans might find worth checking out:

April 20, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Monday, April 16, 2018

Two notable recent sentencing commentaries on work ahead for Congress

Thehill-logo-bigIn recent months I have noticed lots of notable sentencing commentary in the publication The Hill.  And Friday The Hill published two sentencing commentaries of note. They are linked below with their first few paragraphs:

"Congress must act to fix our broken criminal justice system" by Reps. Cedric Richmond (D-LA.) & Mark Walker (R-N.C.):

Our criminal justice system is crumbling.  Over the last 40 years, our domestic incarceration rate has quadrupled, creating a crisis of more than 2 million people behind bars in the United States today.  Simultaneously, recidivism rates have grown or remained high across almost every identifiable demographic or cross section.  And yet, crime rates have steadily fallen.

This paradox exposes a simple fact: our criminal justice system is in desperate need of reform.  What’s more, almost everyone in Congress knows it. Passing significant reforms to our criminal justice system could bring relief to families and communities in every state, district and territory.

Over the past few weeks, at our respective retreats, members of Congress from both parties discussed our priorities.  We believe criminal justice reform needs to be on the top of that list.

Since arriving in Congress, we have seen increasing awareness, education, energy and interest in criminal justice reform, but, to date, we have not been able to enact necessary changes.  Senators have formed working groups.  The House Judiciary Committee passed strong, bipartisan legislation out of committee last year. But no tangible results.  That has to change.

"Reviving the war on drugs is exactly the wrong response to the opioid crisis" by Ames Grawert & James Cullen:

This week on Capitol Hill, lawmakers met to discuss a bill that would impose draconian mandatory minimum sentences on even minor crimes involving the synthetic opioid fentanyl.  The hearing follows news that the Trump administration will seek the death penalty for drug dealers, part of his overall “war on opioids.”

“You just can’t pass a law increasing punishment and expect the opioid crisis to go away,” Sen. Lindsey Graham (R-S.C.) appeared to acknowledge at the outset.  “But it’s a pretty good place to start.”

It’s not.  It’s a bad place to start.  This is the logic of mass incarceration, the instinct to always demand the harshest punishment possible. It animates the Trump administration and its Congressional allies on everything from drug policy to immigration.  And it doesn’t work.  Reform advocates can’t be lulled by the false promise of reform.  We need to fight back before we repeat the mistakes of the 1970s.

April 16, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Sunday, April 15, 2018

Another federal court reaction to federal sentencing realities of modern drug war

In this post a few weeks ago, I noted an interesting Seventh Circuit ruling which not only explored ineffective assistance of counsel in plea negotiations, but also highlighted how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.  That post generated a lot of thoughtful comments, leading me to think it worthwhile to spotlight another drug war sentencing tale with a different variation in the work of counsel and court.

Specifically, a couple of helpful readers sent me a notable sentencing memorandum and a recently unsealed sentencing opinion in US v. Smith, No. 6:17-cr-147-Orl-31KRS (M.D. Fla. Feb. 27, 2018). In this case, as explained by the sentencing judge, Judge Gregory Presnell, Tyrone Smith faced a huge increase in his sentence range under the career-offender guideline for two prior low-level cocaine sales:

Smith was arrested and charged in Count 2 of the Indictment with distribution of a mixture containing a detectable amount of carfentanil.  He pled guilty and appeared before me for sentencing.  The PSR (Doc. 80) scored defendant with a base of 24.  Subtracting two levels for his minor role in the offense and three levels for his acceptance of responsibility, his guideline score would be 19.  With a criminal history score of III, his suggested guideline sentence would be 37-46 months. But the prior state court offenses described above make defendant a career offender as defined by USSG 4B1.1.  Application of this enhancement increases defendant’s score from 19-III to 29-VI, resulting in a guideline range of 151-188 months, a 400% increase for selling $120 worth of cocaine ten years ago!

Running through the 3553(a) factors and noting the "growing chorus of federal judges who reject application of the career offender guideline in certain cases," Judge Presnell concluded "that a reasonable sentence in this case is 30 months, which constitutes a modest downward variance from the low end of defendant’s unenhanced guideline score."

I have provided here for downloading counsel's sentencing memorandum for Tyrone Smith as well as Judge Presnell's "Bench Sentencing Opinion":

Download Sentencing memorandum Final

Download Bench Sentencing Opinion

April 15, 2018 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, April 12, 2018

US Sentencing Commission adopts (mostly minor?) 2018 guideline amendments

As reported in this official press release, "The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy." Here are the substantive details:

At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.

Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).

The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.

The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j)....

At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.

The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for "court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.

As the press release also explains, these amendments "will be transmitted to Congress by May 1, 2018 [and if] Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018." A reader-friendly version of the amendments are available at this link.

As the title of this post suggest, I think most of the amendments here can and should be described as fairly minor, save for the reworking of of the treatment of synthetic drugs. But I would welcome input from those more informed on the particular about anything here that might be especially blogworthy.

April 12, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Wednesday, April 11, 2018

Could former House Speaker John Boehner become the first big drug dealer capitally charged by AG Jeff Sessions?

Boehner-gopThe question in the title of this post is my (tongue-in-cheek?) reaction to this news that former Speaker of the United States House of Representatives John Boehner and former Governor of the State of Massachusetts Bill Weld have joined the Board of Advisors of Acreage Holdings.  This company in this press release calls itself "one of the nation’s largest, multi-state actively-managed cannabis corporations" and on this webpage states that it has "cultivation, processing and dispensing operations across 11 states with plans to expand." 

What this really means, legally speaking, is astutely explained in this tweet by LawProf Alex Kreit: "Oh look, here’s the former speaker of the house publicly announcing that he’s joined a conspiracy to manufacture and distribute a schedule I controlled substance and commit federal drug crimes on an ongoing basis."  But, critically, Boehner is not merely announcing that his is not part of a massive drug conspiracy, he is also perhaps putting himself in position to be subject to the new push by Attorney General Jeff Sessions, discussed here, to "strongly encourage federal prosecutors to use" a federal statute that allows for pursuing the death penalty under 18 U.S.C. § 3591(b)(1) for persons guilty of "dealing in extremely large quantities of drugs." 

Of course, as Christopher Ingraham explained in this Washington Post piece a few weeks ago, a whole lot of marijuana is required to make one eligible for the death penalty under federal law: "there is a federal capital punishment on the books for large quantities of marijuana — a substance with no known lethal dose that is legal for recreational use in nine states plus the District. The threshold is huge — 60,000 kilograms, or 60,000 plants, enough to fill several shipping containers."  But, for a company — or should I say major drug conspiracy — like Acreage Holdings, this amount of marijuana may well be a regular part of regular business operations: 

The quantity-based capital punishment provision is of particular concern to state-legal marijuana businesses.  The plant remains illegal under federal law, regardless of what state laws say.  Aaron Smith, executive director of the National Cannabis Industry Association, a trade group, said in an email that “there are many state-licensed cannabis businesses cultivating 60,000 plants or more.”

Needless to say, I am not expecting John Boehner or Bill Weld to be charged with a federal capital crime or any crime anytime soon.  But I am expecting folks who read this post to better understand why existing federal marijuana prohibition laws garner so little respect and why I think anyone seriously committed to the rule of law ought to be advocating for at least some kind of federal reforms regardless of their particular policy views on particular state marijuana reforms.

April 11, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Wednesday, April 04, 2018

The intricate realities of the drug war on full display in recent Seventh Circuit ruling on ineffective assistance of counsel in plea negotiations

A helpful reader alerted me to an interesting panel ruling by the Seventh Circuit handed down yesterday in Brock-Miller v. US, No. 16-3050 (7th Cir. April 3, 2018) (available here). The reader rightly noted that this opinion provides a thorough discussion of ineffective assistance of counsel in plea negotiations before ordering the district court to hold a hearing to explore claims of deficient performance by the defendant's lawyer.  I also found remarkable the case's accounting of how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.

Specifically, as the panel opinion explains, LeeAnn Brock-Miller pleaded guilty, "pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute heroin [resulting in] the agreed-upon sentence of ten years’ imprisonment."   What did she do to get this decade-long sentence?  According to the opinion, she was driving with three other men (one of whom it seems was her husband) on a highway headed to purchase 54 grams of heroin in Chicago; and according to sentencing testimony: "this car trip was an isolated incident, where she agreed to give the others a ride in exchange for one gram of heroin for herself.  Brock-Miller had an extensive criminal history that corroborated her claim that she did not sell drugs but was an addict who simply bought drugs for personal consumption."

Problematically for Brock-Miller, (1) that lone car trip allowed the Government to claim she was part of a drug conspiracy to traffic more than a kilo of heroin, triggering a possible 10-year mandatory minimum, and (2) she had a prior Indiana conviction for “Unlawful Possession of Syringes or Needles” which the Government claimed was a predicate drug felony under 851 that doubled her potential mandatory minimum term to 20 years in federal prison(!).  With the feds threatening this big hammer, the defendant here understandably was amenable to her defense counsel's advocacy to accept a plea deal that called for "only" a 10-year sentence.

But as the Seventh Circuit goes on to explain, the defendant's prior Indiana conviction was not actually a qualifying predicate to double her applicable mandatory minimum and she had a reasonable trial argument that not foreseeable was the "full kilogram of heroin charged in the indictment [for] someone who joined the conspiracy at the very end, in a deal involving only 54 grams."  In other words, the defendant had a winning legal argument that her mandatory minimum should not have been doubled, and a viable argument that she should not be subject to any mandatory minimum term at all.  Luckily for the defendant, a Seventh Circuit panel helped figure this out and the apparent ineffectiveness of her counsel may allow her to get resentenced in a more fitting way.

But I must conclude by stressing the dark cloud that overwhelms any Brock-Miller silver lining: the very possibility that "an addict who simply bought drugs for personal consumption" could be threatened with a 20-year mandatory minimum federal prison term reveals how dysfunctional and morally bankrupt our federal sentencing laws can be.  And I am quite certain that LeeAnn Brock-Miller is not the first person nor the last person to be chewed up by these laws; indeed, sadly, there are many thousands that have come before her, and likely many thousands still to come.

April 4, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (21)

Are prisons and jail now, and should they be, our society's modern addiction treatment centers?

The question in the title of this post is prompted by this notable new article in Stateline headlined "Addiction Treatment, for Jails and Prisons, Gains Momentum."  Here are excerpts:

From the moment they are arrested, people with an addiction to heroin and prescription painkillers and those who are taking medications to beat their addictions face the prospect of painful opioid withdrawal.

At least a quarter of the people in U.S. prisons and jails are addicted to opioids. Those who are released rejoin their communities with dangerously reduced tolerance and nothing to blunt their drug cravings, making them highly susceptible to a deadly overdose.

But new scientific evidence and a recently announced federal investigation may soften prison officials’ long-held opposition to medication-assisted treatment.

Rhode Island is the only state that provides all three FDA-approved addiction medications, methadone, buprenorphine and a long-acting, injectable form of naltrexone known as Vivitrol, to all inmates. A recent study in the medical journal JAMA Psychiatry found that opioid overdose deaths dropped by nearly two-thirds among recently incarcerated people in the first year of a new program that screens and provides addiction medicines to all state inmates. According to the study by Brown University researchers, the program not only reduces overdose deaths after the inmates are released, but also increases the likelihood they will stay in treatment and avoid getting arrested again.

Meanwhile in Massachusetts, which doesn’t provide methadone or buprenorphine to inmates, the U.S. Department of Justice is investigating whether corrections officials are violating the Americans with Disabilities Act by forcing inmates who were taking those addiction medicines when they entered prison to stop taking them while incarcerated.

Massachusetts lawmakers are considering a corrections bill that would require the state’s prisons and jails to offer all three FDA-approved medications. A similar proposal is advancing in Connecticut, which has provided methadone to some inmates in some jails for six years. The bill there would expand the program to all medications for all inmates.

And at the federal level, President Donald Trump promised last month to screen every federal inmate — roughly 180,000 people — for opioid addiction and provide Vivitrol in residential treatment centers prior to release. Trump also called for more federal support for state, local and tribal drug courts to help provide “evidence-based treatment as an alternative to or in conjunction with incarceration, or as a condition of supervised release.”

Fewer than 1 percent of the more than 5,000 U.S. prisons and jails, housing more than 2 million inmates, allow access to the FDA-approved medication, even though medical societies, addiction experts and correctional health organizations support their use. Finding the money to fund correctional drug treatment programs is a challenge in many states. But research shows that the cost of providing addiction medications in correctional facilities is outweighed over time by savings in both future health care and incarceration costs....

Standing in the way are sheriffs and other prison officials, who argue that allowing treatment inside prisons with methadone or buprenorphine — both narcotics that can be abused — will lead to the drugs being diverted within the prison and possibly to illicit street markets.

In Barnstable County, Massachusetts, for example, Sheriff James Cummings said he would not allow buprenorphine to be dispensed in his jail because it is considered contraband. “We ruled out buprenorphine because it doesn’t work for the people we deal with,” Cummings said. “Inmates try to smuggle it into the facility every day. It’s a narcotic. They use it until they can get their next heroin fix so they don’t get sick and they sell it to get money to buy more heroin. It’s not a good fit.”

Instead, Barnstable in 2012 added Vivitrol to its re-entry program for opioid-addicted inmates who are scheduled to leave within the next two weeks. Cummings said the program has reduced overdose deaths and repeat offenses. In general, Vivitrol is an easier sell in most prisons and jails, said Andrew Klein, who runs a Justice Department program aimed at getting more drug treatment into correctional facilities. But it’s not the best medication for everyone, he said.

In fact, nearly all corrections officials reject the use of either methadone or buprenorphine behind prison walls. That’s despite a history of research showing both medicines are highly effective at eliminating cravings, preventing overdoses and keeping people in recovery from opioid addiction....

At least 1 in 5 incarcerated people are imprisoned because of drug charges, but in many states, even more inmates are addicted to heroin and other opioids. In Connecticut, for example, at least 30 percent of the state’s 14,000 inmates are addicted to opioids, according to Kathleen Maurer, the medical director for he state’s corrections department. Nationwide, a quarter of heroin addicts pass through the corrections system each year, according to a study in the Journal for Opioid Management....

Five states — Hawaii, New Jersey, New York, Vermont and Washington — offer both methadone and buprenorphine to some inmates at one or more prisons or jails. Only Rhode Island offers all three medications to all inmates in all of its prisons and jails.

April 4, 2018 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Wednesday, March 28, 2018

"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"

The title of this post is the title of this notable and timely new report from the US Sentencing Commission. Here is a summary of its coverage and findings from this USSC webpage:

The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.

In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.

Key Findings

The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".

Key findings of the Commission’s study are as follows:

  • The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

  • Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.

  • Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.

March 28, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7)

Monday, March 26, 2018

"The War on Drugs Breeds Crafty Traffickers"

The title of this post is the title of this notable new op-ed in the New York Times authored by Sanhoe Tree. I recommend the piece is full, and here are excerpts:

Politicians often escalate drug war rhetoric to show voters that they are doing something. But it is rare to ignore generations of lessons as President Trump did earlier this month when he announced his support for the execution of drug traffickers. This idea is insane. But the war on drugs has never made any sense to begin with.

Executing a few individual smugglers will do little to stop others because there is no high command of the international drug trade to target, no generals who can order a coordinated surrender of farmers, traffickers, money launderers, dealers or users.  The drug trade is diffuse and can span thousands of miles from producer to consumer. People enter the drug economy for all sorts of reasons — poverty, greed, addiction — and because they believe they will get away with it.  Most people do.  The death penalty only hurts the small portion of people who are caught (often themselves minorities and low-level mules).

Indeed, on the ground, the threat of execution will even help those who aren’t caught because they can charge an increased risk premium to the next person in the smuggling chain. The risk of capture and punishment increases as drugs move from farm to processing lab, traversing jungles, through cities, across oceans, past borders, distributed by dealers and purchased by consumers.  The greater the risk to smugglers in this chain, the more they can demand in payment....

An overreliance on intensive policing over the decades has also produced a rapid Darwinian evolution of the drug trade.  The people we have typically captured tend to be the ones who are dumb enough to get caught.  They may have violated operational security, bragged too much, lived conspicuous lifestyles or engaged in turf wars.  The ones we usually miss tend to be the most innovative, adaptable and cunning. We have picked off their clumsy competition for them and opened up that lucrative economic trafficking space to the most efficient organizations.  It is as though we have had a decades-long policy of selectively breeding supertraffickers and ensuring the “survival of the fittest.”

To support his case for executions, Mr. Trump cites draconian penalties in other countries. Iran has used the death penalty extensively in drug cases, but more than 2.8 million Iranians still consume illicit drugs.  Earlier this year, the Iranian government even repealed the use of executions in most drug cases which could spare up to 5,000 people on death row.

Mr. Trump often praises President Rodrigo Duterte’s brutal drug war in the Philippines, which has claimed 12,000 to 20,000 lives in mostly extrajudicial killings.  But there is little indication that drug use has actually decreased.  In fact, as the killings have increased, so too have the government’s drug use estimates.  What began as 1.8 million users at the beginning of 2016 grew to three million and later four million.  Last September, the Philippine Foreign Secretary, Alan Peter Cayetano, even raised that estimate to seven million. The higher numbers are likely inflated, but more killings do not appear to reduce the number of users.

Singapore notoriously refuses to publish reliable drug-use statistics, so there is no way to show whether executions have any measurable effect on drug consumption.  As Harm Reduction International pointed out, however, Singapore’s seizures for cannabis and methamphetamine increased 20 percent in 2016 while heroin seizures remained stable. Moreover, 80 percent of Singapore’s prisoners are incarcerated for drug-related offenses.  All of this suggests, Singapore’s famous panacea to solve the drug problem is not as miraculous as it seems....

Mr. Trump is not advancing a new strategy to deal with opioids.  It was President Clinton who put these death penalty statutes on the books as part of the 1994 crime bill, but they remain unused.  Mr. Trump and Attorney General Jeff Sessions are trying to change that.  They want to use those laws in racketeering cases and ones involving large quantities of drugs even though the Supreme Court has ruled that capital punishment should be reserved only for crimes resulting in death.

The Donald Trump of 2018 should take a lesson from the Donald Trump of 1990 when he told the Miami Herald: “We are losing badly the war on drugs. You have to legalize drugs to win that war.”

March 26, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, March 23, 2018

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

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

TITLE II

DEPARTMENT OF JUSTICE

GENERAL ADMINISTRATION

SALARIES AND EXPENSES

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

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

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

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

March 23, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, March 22, 2018

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

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

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

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

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

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

A few prior related posts:

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

Wednesday, March 21, 2018

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

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

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

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

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

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

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

Prior related posts:

March 21, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, March 19, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, March 18, 2018

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, March 16, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, March 11, 2018

"More Imprisonment Does Not Reduce State Drug Problems"

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

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

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

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

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

Saturday, March 10, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

Friday, March 09, 2018

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

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

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

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

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

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

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

Thursday, March 01, 2018

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

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

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

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

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

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

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

Prior related post:

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

Wednesday, February 28, 2018

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

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

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

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

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

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

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

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

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

Sunday, February 25, 2018

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 15, 2018

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

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

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

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

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

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

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

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

Wednesday, February 14, 2018

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

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

Monday, February 12, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, February 10, 2018

Highlighting how mandatory minimums can distort pretrial procedures and practices

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

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

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

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

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

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

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

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

Tuesday, February 06, 2018

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

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

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

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

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

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

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

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

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

Wednesday, January 31, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 30, 2018

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

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

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

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

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

Some (of many) prior posts on sentencing finality:

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

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

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

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

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

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

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

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

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

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

Sunday, January 28, 2018

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

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

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

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

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

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

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

A few of many prior related posts:

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

Tuesday, January 23, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Friday, January 19, 2018

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

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

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

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

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

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

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

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

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

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

Friday, January 12, 2018

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

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

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

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

Lagos v. United States, No. 16-1519

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

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

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

Monday, January 08, 2018

"Mass Incarceration and the War on Drugs"

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

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

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

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

Sunday, January 07, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 04, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Related posts from here and MLP&R:

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

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

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

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

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

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

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

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

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

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

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

Related post from MLP&R:

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

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

Monday, January 01, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 28, 2017

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

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

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

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

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

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

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

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

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

Wednesday, December 20, 2017

"Three ways conservatives can lead criminal justice reform"

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 19, 2017

Notable account of notable application of death penalty in China

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

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

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

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

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

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

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

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

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

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