Wednesday, November 30, 2016
"An Incubator for (Former) Drug Dealers: 'Hustlers are entrepreneurs denied opportunity'"
Some tough-on-crime folks who still love fighting the drug war remain eager to assert that any and all drug dealers are all vicious and violent criminals in waiting. For example, in this new commentary, Bill Otis argues we must not now "lighten up on non-violent, low-level drug dealers" because, in his words, "drug dealing is an inherently violent business; an affable transaction today is tomorrow's bloody shootout" and "we cannot reliably tell who is violent and who isn't."
Based on the bloody history of alcohol Prohibition in the 1920s and recent nonviolent experiences with legalized marijuana markets out west, I have a much different perspective on drug dealing. Most bootleggers a century ago and many drug dealers today seem really to be street-level entrepreneurs who pursue black-market economic opportunities and who turn to violence only if black market conditions require the use of force.
Intriguingly, this notable new Bloomberg BusinessWeek piece which carries the headline that is also the title of this post, reports on reentry programming that seems to confirm my perspective on most drug dealers. I recommend the piece in full, and here are excerpts:
Over the past decade, a number of government, academic, and nonprofit programs have attempted to address the structural problems that face convicts when they’re released from prison — a campaign known as the “re-entry movement.” One of the biggest contributors to misery and recidivism is an inability to find steady work. Former inmates encounter stigma, bias, and even formal obstacles to getting hired. Connecticut, for example, has 423 employment restrictions based on criminal records, including bans on obtaining a teaching certificate, operating commercial motor vehicles, and becoming a firefighter.
Amid calls for more job training, less automatic background searching, and other changes that would make it easier for ex-felons to become employees, an alternative idea has slowly taken hold: Encourage them to start their own businesses. The largest nonprofit pushing entrepreneurism of this kind is Defy Ventures, based in New York, which over the past six years has trained more than 500 formerly incarcerated people and incubated more than 150 successful startups. Defy has become a critical darling among social scientists, boasting a 3 percent recidivism rate among alumni, compared with the national average of 76 percent of released inmates who are reincarcerated within five years....
On the morning of July 9, a year to the day after he shed his prison uniform for street clothes, Bashaun Brown stood in a rented conference room. Beside him were two colleagues, both undergraduates at nearby Wesleyan University, and seated before him were four aspiring entrepreneurs. This was a meeting of TRAP House, Brown’s creation, an incubator for former drug dealers who want to start legal companies. The name stands for “transforming, reinventing, and prospering” and is a play on the term for drug-stash locations....
Brown’s premise with TRAP House is that “hustlers are entrepreneurs denied opportunity.” The agenda for class that day included honing elevator pitches, gaining access to seed capital, and calculating financial projections. Brown flipped through slides projected on a screen behind him from his laptop, a silver MacBook with busted hinges and a decal of Shel Silverstein’s The Giving Tree. Angel investors, Brown told the group, are “a group of true capitalists who use money to make money. Like how some people live off the thrill of dealing drugs, these guys live off the thrill of that flip.”...
Brown later told me that as he sees it, drug dealers have more business savvy than they realize. “If I’m talking about marketing research, I would tell the guys, ‘Listen, you have done this before,’ ” he said. “ ‘You didn’t just come to your ’hood and set up shop. No, you have to do some kind of research. What type of drugs do they want to buy? What price would they buy it for? How much would I make?’ ” The same is true of gauging risk. In addition to the potential of economic loss, a hustler must “look at the odds of getting caught and then do an analysis,” Brown said. “Most people say that criminals are irrational. But when it comes to selling drugs, it’s a highly rational choice.” He kept riffing on such topics as team-building and customer relations. “The better drug dealers I know have great interpersonal skills,” he said.
Monday, November 28, 2016
Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform. Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.
That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here. Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place. During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department. So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted. Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015).
I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders. Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider. The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony." Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular. But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.
Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation. I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review. Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.
I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons). But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.
November 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Saturday, November 26, 2016
So many marijuana reform developments and questions, with so many more on 2017 horizon
Though I blogged a bit in this space about marijuana reform right around the election (see here and here), over the last few weeks I have been content to cover this issues just over at Marijuana Law, Policy & Reform. But this new post about this new article about the thousands of Californians getting sentencing relief thanks to the state's passage of a major marijuana legalization proposition, Prop 64, reminded me that I should be reminding readers about the close links between marijuana reform in particular and sentencing reform in general.
The first post linked below tells the sentencing reform story, and some other postings from my other blog tell a whole lot of other interesting and dynamic stories about the current state and possible future of marijuana reform in the United States:
Monday, November 21, 2016
"Four Ways Drug Policy Reformers Must Play It Smart Under the Trump Administration"
The title of this post is the headline of this notable new commentary by Bill Piper, which gets started this way:
I began working, advocating and lobbying for federal-level drug policy reform in Washington, DC in the last year of Bill Clinton’s presidency. I’ve continued to do so ever since: I was a loyal soldier in the war against the War on Drugs through eight years of George W. Bush and then eight years of Barack Obama. But now, with the election of Donald Trump, it feels like the work during those three presidencies was just basic training—the real challenge is just beginning.
Like many people, I’m still trying to wrap my mind around the very idea of Donald Trump as president. But what’s certain is that drug policy reformers are going to have to play it smart in the new era, and I do have some initial thoughts.
First, we’re in uncharted territory. We have never had a president like this—so far removed from establishment norms, openly promoting white supremacy, believing in and promoting wacko conspiracy theories. Complicating matters, he doesn’t seem to have fixed positions, rarely gives specifics and contradicts himself often. No one knows for sure what exactly to expect, but we should assume the worst.
His administration, which looks set to be staffed by drug-war extremists, could go after state marijuana laws. Instead of just opposing sentencing reform, they could push for new mandatory minimums. They might demonize drugs and drug sellers to build support for mass deportations and a wall. Trump’s law-and-order rhetoric could fundamentally alter the political environment, nationally and locally.
Right now there is a bipartisan consensus in favor of reducing incarceration—that consensus is in danger. We could be set back decades if we’re not careful. We need to rethink a lot of what we’ve been planning and think about how we message. And it’s more important than ever that we support our allies in other movements and stand strong for racial justice. We need to re-learn how to play defense.
Friday, November 18, 2016
So who is happy or sad about Jeff Sessions for Attorney General?
consider this an open thread.
UPDATE: I just remembered that Senator Jeff Sessions was long an advocate for equalizing crack and powder cocaine sentences. Through the FSA enacted in 2010, the notorious 100-1 crack/powder ratio was reduced to roughly 18:1. I would think it very valuable and very wise for various folks interested in drug sentencing reform to unearth and promotes just what Senator Sessions said in the past on this front.
Sunday, November 13, 2016
"Hard Bargains: The Coercive Power of Drug Laws in Federal Court"
The title of this post is the title of this soon-to-be released book by Mona Lynch that is now at the very top of my holiday wish/reading list. Here is the publisher's description of the book:
The convergence of tough-on-crime politics, stiffer sentencing laws, and jurisdictional expansion in the 1970s and 1980s increased the powers of federal prosecutors in unprecedented ways. In Hard Bargains, social psychologist Mona Lynch investigates the increased power of these prosecutors in our age of mass incarceration. Lynch documents how prosecutors use punitive federal drug laws to coerce guilty pleas and obtain long prison sentences for defendants — particularly those who are African American — and exposes deep injustices in the federal courts.
As a result of the War on Drugs, the number of drug cases prosecuted each year in federal courts has increased fivefold since 1980. Lynch goes behind the scenes in three federal court districts and finds that federal prosecutors have considerable discretion in adjudicating these cases. Federal drug laws are wielded differently in each district, but with such force to overwhelm defendants’ ability to assert their rights. For drug defendants with prior convictions, the stakes are even higher since prosecutors can file charges that incur lengthy prison sentences — including life in prison without parole.
Through extensive field research, Lynch finds that prosecutors frequently use the threat of extremely severe sentences to compel defendants to plead guilty rather than go to trial and risk much harsher punishment. Lynch also shows that the highly discretionary ways in which federal prosecutors work with law enforcement have led to significant racial disparities in federal courts. For instance, most federal charges for crack cocaine offenses are brought against African Americans even though whites are more likely to use crack. In addition, Latinos are increasingly entering the federal system as a result of aggressive immigration crackdowns that also target illicit drugs.
Hard Bargains provides an incisive and revealing look at how legal reforms over the last five decades have shifted excessive authority to federal prosecutors, resulting in the erosion of defendants’ rights and extreme sentences for those convicted. Lynch proposes a broad overhaul of the federal criminal justice system to restore the balance of power and retreat from the punitive indulgences of the War on Drugs.
November 13, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)
Tuesday, November 08, 2016
In Oklahoma, ballot initiative on death penalty wins big and sentencing reform initiatives also win
Though hard to figure out from just looking at this official Oklahoma election page, it appears that all the sentencing ballot issues being considered by voters passed:
State Question 776 has won 66.5% to 34.5%, thereby amending the Oklahoma Constitution to guarantee the state’s power to impose capital punishment and set methods of execution.
State Question 780 has won 58% to 42%, thereby reclassifying certain state property offenses and simple drug possession as misdemeanor crimes.
State Question 781 as won 56% to 44%, thereby taking the savings from reclassifying certain offenses to fund rehabilitative programs, including substance abuse and mental health treatment programs.
Thursday, November 03, 2016
Notable new analysis of marijuana arrest rates and patterns acorss the nation
This new post at Marijuana.com, under the headline "Marijuana Decrim Doesn’t Stop Discrimination, New Data Shows," appears to be reporting and analyzing some important new data on the impact of marijuana reform on some key criminal justice metrics. Here are excerpts from the lengthy entry:
Marijuana arrest rates are plummeting as a growing number of far-reaching state policy reforms like legalization and decriminalization are enacted; however, stark racial disparities in cannabis law enforcement remain, a new Marijuana.com analysis of policing data uncovers. The data provided an illuminating follow-up to the 2013 American Civil Liberties Union report which made headlines by showing that, while African Americans and whites use marijuana at roughly equivalent rates, blacks are much more likely to be arrested for it.
Public records requests submitted via MuckRock to all 50 states for data pertaining to marijuana-related arrests show, on average, a significant decrease in possession offenses in the years since the publication of the ACLU report, which was based on 2010 data. But despite the apparent shift in focus away from the enforcement of marijuana possession laws, the racial bias in arrest rates uncovered by the ACLU remains intact.
The new data also revealed that decriminalization measures may have become an unintentional barrier to transparency in marijuana law enforcement. The classification of marijuana as a less serious offense in many states has resulted in a deprioritization of tracking critical information regarding who is stopped, and how often.
Among the key findings of the new Marijuana.com analysis are:
- In New York, despite significant drops in arrests for misdemeanor possession of marijuana, black people are more than 13 times as likely as white people to be arrested for it.
- Despite significant drops in overall arrest rates, Florida increased the number of people arrested for marijuana possession since 2010.
- States with a large racial disparity in arrests – New York, North Carolina and South Carolina – also tend to be the states with higher overall arrest rates.
- The largest drops in overall arrest rates since 2010 occurred in Nevada, Alaska, Connecticut and New York.
In all, data were received from 25 states; 12 states provided arrest numbers for local and state police — many not filtered by agency — while 13 either separated local and state police data or provided numbers only for state police. The remaining states for which data were not obtained either do not keep track of marijuana offenses as distinct from other drug-related crimes, do not keep track of marijuana offenses on a state level or charged prohibitively high fees for the same data which other states provided for free.....
The data we are able to report here do not tell the whole story of marijuana users’ clash with the law in this age of decriminalization and legalization. Public opinion toward marijuana has shifted dramatically, particularly within the last several years. A few states have legalized possession of small amounts, while others have instead opted to reclassify possession of similar amounts from felonies to misdemeanors or from misdemeanors to civil infractions, to reflect this change in perception.
While this shift has been a laudable victory for advocates pushing for full legalization of recreational use, it has also resulted in increased difficulty in tracking important data. Finding the answer to a relatively simple question, such as, “How many people in this state were caught with marijuana in the year 2014?” has become all the more arduous. Researchers are forced to track down data for misdemeanors and felonies at the state level in addition to approaching individual law enforcement agencies directly for data on civil infractions, hoping they keep track of those numbers at all.
Consequently, the data reported here reflect only the marijuana possession offenses which are reported at the state levels; the number of civil infractions in states which have decriminalized possession are evidenced only by the significant drop in arrest rates (misdemeanors) following such a change in the law....
Taken as a whole, the new numbers obtained by Marijuana.com add to the debate about the effects of both prohibition and the decriminalization policies that advocates have succeeded in enacting in a growing number of jurisdictions, and the data (or in some cases lack thereof) shed light on the difficulty in tracking many of those effects.
I find this report and its data quite interesting, but it is a bit opaque and ultimately further convinces me that one of the first (and non-controversial?) priorities for the new federal administration should be to try to collect and analyze data on modern marijuana enforcement nationwide . Of course, I think a priority for everyone interested in the marijuana reform space must include checking out my other blog where you can find these recent posts on various related topics:
- "'The Mellow Pot-Smoker': White Individualism in Marijuana Legalization Campaigns"
- Would federal marijuana reform get a real "boost" if Democrats gain control of the US Senate?
- "Future is hazy for marijuana and the workplace"
Wednesday, October 26, 2016
Famous "war on drugs" voice now voicing support for marijuana reform: any questions?
This new MarketWatch article, headlined "War on drugs spokesman now supports marijuana legalization," gives me an excuse to flag an iconic 1980s public service announcement while reporting on its new symbolic significance:
The voice behind one of the war on drugs’ most iconic ads has cast a vote to legalize marijuana. During the height of the ’80s war on drugs that gave rise to the “Just Say No” campaign, actor John Roselius stared in an antidrug TV ad for the Partnership for a Drug-Free America. The ad featured Roselius frying an egg in a skillet to portray what happens to the brain while using drugs.
Roselius, who is now 72, recently told Colorado-based Rooster Magazine he voted “yes” on California’s Adult Use of Marijuana Act, or Prop 64, which would legalize and regulate the use and sale of the plant to adults. “I’m 100% behind legalizing it, are you kidding? It’s healthier than alcohol,” Roselius told the publication.
And he’s not alone. Just ahead of the Nov. 8 election — in which five states will vote on legalizing the recreational use of marijuana and four will vote on legalizing medical marijuana—a Gallup poll shows that 60% of Americans support legal marijuana use. That’s the highest percentage of support recorded in the 47-year trend, with support rising among all age groups in the past decade.
That follows a separate poll by Pew Research earlier in the month which found 57% of Americans support legalization. “The topline number obviously bodes well for the marijuana measures on state ballots next month,” said Tom Angell of Marijuana Majority, an organization tasked with educating people and fighting for marijuana legalization. “More politicians — presidential candidates included — would do themselves a big favor to take note of the clear trend and then vocally support legislation catering to the growing majority of Americans who support modernizing failed marijuana policies.”
Roselius told Rooster Magazine he’d smoked marijuana in the ’60s, and that when he made the ad, he knew it didn’t fry the brain like an egg.
The war on drugs has been one of the most scrutinized and debated policies to come out of the Reagan era. Drug dealers were cast as violent villains and were blamed for devastating some of America’s cities. Incarceration rates shot higher and disproportionately affected men of color.
The cannabis industry has since fought back against that portrayal, calling for an end to arrests for nonviolent marijuana-related offenses. Roselius’ vote to legalize marijuana in California could help push one of the most important states in the movement to the forefront.
Of course, if you do have question about these matter, my blog Marijuana Law, Policy and Reform has a lot more coverage. And, with that intro and a good excuse now, here is a review of some recent posts there (many of which are the fine work of my relatively new co-blogger):
- "The Hazy Rollout of Ohio’s Medical Marijuana Control Program"
October 26, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)
Tuesday, October 25, 2016
Latest USSC data suggest prison savings now exceeding $2 billion from "drugs -2" guideline amendment retroactivity
The US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated October 2016, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through September 30, 2016, and for which court documentation was received, coded, and edited at the Commission by October 20, 2016."
The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782, the so-called "drugs -2" guideline amendment, retroactive, now 29,391 federal prisoners have had their federal drug prison sentences reduced by an average of over two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $2.1 billion dollars.
As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and taxpayer costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be relatively cautious in his use of his clemency power, this data provide still more evidence that the work of the US Sentencing Commission in particular, and of the federal judiciary in general, remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.
Friday, October 21, 2016
New Gallup poll reports notable trends in "tough-on-crime" public polling perspectives
This new Gallup item, headlined "Americans' Views Shift on Toughness of Justice System," details the results of its latest annual Gallup poll on on crime and punishment opinions. Here are the highlights:
Americans' views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is "not tough enough" -- down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system's approach as "about right" (35%) or "too tough" (14%).
Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans' views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is "not tough enough." Although considerably higher than in the past, relatively few believe the system is "too tough."
Views of the justice system's toughness vary across racial and political party lines. The majority of Republicans and Republican-leaning independents say it is "not tough enough" (65%), with most of the rest describing it as "about right" (30%). Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is "about right" (42%), with the rest dividing about evenly between saying it is "too tough" (22%) or "not tough enough" (29%).
A majority of whites (53%) say the system's handling of crime is "not tough enough," while a third (32%) say it is "about right." One in 10 whites say the system is "too tough." Nonwhites -- who as a group make up a disproportionate percentage of the U.S. incarcerated population -- are more than twice as likely as whites to say the system is "too tough" (23%). They are also more likely than whites to say it is "about right" (40%). Meanwhile, 30% of nonwhites say the system's handling of crime is "not tough enough."
Against a backdrop of bipartisan efforts in Congress to reform drug sentencing in 2016, 38% of U.S. adults describe guidelines for sentencing of people convicted of routine drug crimes as "too tough." A slightly smaller percentage say they are "not tough enough" (34%), while a quarter say they are "about right" (25%). Fifty percent of Democrats say drug crime sentencing guidelines are "too tough" -- twice as high as the percentage of Republicans (26%) who say the same. Republicans are more likely than Democrats to describe drug crime sentencing as "not tough enough" (47%).
Differences in views between whites and nonwhites are less pronounced on drug crime sentencing guidelines compared with their views of the criminal justice system's handling of crime more generally. Both whites and nonwhites have sizable percentages, ranging from 21% to 39%, of those who describe drug crime sentencing guidelines as "too tough," "not tough enough" or "about right."
Americans' views about the toughness of the criminal justice system have clearly shifted in recent decades, with less than a majority now saying the system is "not tough enough" and more Americans describing it as "about right" or "too tough." Although more than in the past believe the system is overly tough, this view is still held by a relatively small minority. U.S. adults are much more likely, however, to describe drug crime sentencing guidelines as "too tough" compared with their opinions of the system's handling of overall crime, and this is the case among both racial and political party groups.
The folks over at Crime & Consequences have these two notable posts discussing these new Gallup data (though I cannot help but note they did not comment on other recent Gallup polling data reporting record-high majoritarian support for the legalization of marijuana):
Wednesday, October 12, 2016
"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"
The title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:
Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.
As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.
This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.
There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.
The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.
You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?
The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:
The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him. Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.
Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.
Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month. Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.
This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old. With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.
Friday, October 07, 2016
Am I crazy to actually be expecting a marijuana (or drug war/opioid) question during Sunday's town-hall Prez debate?
Especially because neither marijuana reform nor the opioid epidemic came up during the the first Prez debate (or the VP debate), I am actually anticipating that these topics will be raised in some way during the town-hall debate scheduled for this coming Sunday. As regular readers of my Marijuana Law, Policy and Reform blog might guess, I think the very best question to ask the candidates could link these topics. Specifically, here is the question I would love to see asked on Sunday:
"Given the evidence emerging from a number of early studies that opioid use and abuse has generally been reduced in those states that have reformed their marijuana laws, will you commit your Administration in its first 100 days to move federal law away from blanket marijuana prohibition?"
I welcome readers to suggest their own questions on these topics in the comments (and recent posts at my other blog provides plenty of ideas for all sorts of possible questions):
- "Marijuana really can be deadly – when encountering police officers"
Thursday, October 06, 2016
Prez Obama commutes 102 more federal prison sentences
I just saw via various news sources that President Obama issued 102 more commutations this afternoon. This blog post by the White House counsel reports the basics, and here is how it gets started:
Today, President Obama granted commutations to another 102 individuals who have demonstrated that they are deserving of a second chance at freedom. The vast majority of today’s grants were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws. With today’s grants, the President has commuted 774 sentences, more than the previous 11 presidents combined. With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.
While he will continue to review cases on an individualized basis throughout the remainder of his term, these statistics make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process. Beyond the statistics, though, are stories of individuals who have overcome the longest of odds to earn this second chance. The individuals receiving commutation today are mothers and fathers, sons and daughters, and in some cases grandparents. Today, they and their loved ones share the joy of knowing that they will soon be reunited.
Sunday, October 02, 2016
Sunday election season democracy/freedom fun: guess the political speaker, the party and the context for a potent quotable about "the degenerate vote"
I love reading books about American political and social history, especially in the midst of of an yet another overwrought election season, and the one I am reading now had this remarkable quote that I just could not resist sharing as early voting begins in many jurisdictions for just the very latest and greatest "most important election of our lifetime." When thinking about how best to share this quote, I figured it might be fun on this Sunday to encourage readers to try to guess who said the following, representing what party, and in what context. The source of the quote will appear after the break, but here is first the potent quote:
"It is the degenerate vote that has in the past overwhelmed the liberties of free people. And it is the degenerate vote in our big cities that is a menace to our institutions."
This quote's repeated reference to the "degenerate vote" especially struck a chord with me in the wake of Hillary Clinton's infamous recent statement about half of Donald Trump's supporters being a "basket of deplorables."
But I also could not help but think about the on-going fight in Virginia over trying to have former felons enfranchised or national fights over voting rights to reflect another set of view on the potential harms of "the degenerate vote."
And, for a real hint about the context for the quote, readers might also consider my own research interests in how marijuana reform initiatives might be helping to turn out certain voters.
So, dear readers, before clicking through, perhaps comment on or at least think about who you think might be the political speaker, the party and the context for this potent quotable concerning "the degenerate vote."
Answer: this quote is attributed, in the book I am now reading, to Richmond Pearson Hobson who was a United States Navy Rear Admiral and who served from 1907–1915 as a Democratic U.S. Representative from Alabama. Rep Hobson was a decorated veteran of the Spanish–American War, and he is famous in part because, after being denied renomination in the 1914 Democratic primary, he became the only Congressman from the Deep South to vote for the (failed) women's suffrage bill in the 1915 lame-duck session of Congress.
As his vote for women's suffrage bill suggests, Hobson was not referencing women voters back a century ago when decrying "the degenerate vote." Rather, Hobson was fond of using the term "degenerate" to reference those men who consumed alcohol, and he did so because he believed quite strongly that science proved that alcohol turned men into degenerates. This perspective is on full display in this lengthy speech in support of alcohol prohibition delivered by Hobson 102 years ago on the floor of the US House of Representatives, where he explained his views and built the argument for a Prohibition amendment to the US constitution:
The first finding of science that alcohol is a protoplasmic poison and the second finding that it is an insidious, habit-forming drug, though of great importance, are as unimportant when compared with the third finding, that alcohol degenerates the character of men and tears down their spiritual nature.... Alcohol tears down the top part of the brain in a man, attacks certain tissues in an animal, certain cells in a flower. It has been established that whatever the line of a creature's evolution alcohol will attack that line. Every type and every species is evolving in building from generation to generation along some particular line. Man is evolving in the top part of the brain, the seat of the will power, the seat of the moral senses, and of the spiritual nature, the recognition of right and wrong, the consciousness of God and of duty and of brotherly love and of self-sacrifice.....
Science has thus demonstrated that alcohol is a protoplasmic poison, poisoning all living things; that alcohol is a habit-forming drug that shackles millions of our citizens and maintains slavery in our midst; that it lowers in a fearful way the standard of efficiency of the Nation, reducing enormously the national wealth, entailing startling burdens of taxation, encumbering the public with the care of crime, pauperism, and insanity; that it corrupts politics and public servants, corrupts the Government, corrupts the public morals, lowers terrifically the average standard of character of the citizenship, and undermines the liberties and institutions of the Nation; that it undermines and blights the home and the family, checks education, attacks the young when they are entitled to protection, undermines the public health, slaughtering, killing, and wounding our citizens many fold times more than war, pestilence, and famine combined; that it blights the progeny of the Nation, flooding the land with a horde of degenerates; that it strikes deadly blows at the life of the Nation itself and at the very life of the race, reversing the great evolutionary principles of nature and the purposes of the Almighty.
There can be but one verdict, and that is this great destroyer must be destroyed. The time is ripe for fulfillment. The present generation, the generation to which we belong, must cut this millstone of degeneracy from the neck of humanity....
To cure this organic disease we must have recourse to the organic law. The people themselves must act upon this question. A generation must be prevailed upon to place prohibition in their own constitutional law, and such a generation could be counted upon to keep it in the Constitution during its lifetime. The Liquor Trust of necessity would disintegrate. The youth would grow up sober. The final, scientific conclusion is that we must have constitutional prohibition, prohibiting only the sale, the manufacture for sale, and everything that pertains to the sale, and invoke the power of both Federal and State Governments for enforcement. The resolution is drawn to fill these requirements.
Wednesday, September 28, 2016
NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
This official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty. The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:
Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.
The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.
The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.
Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.
Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.
Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution. “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed. The proposal was introduced late last week.
I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.
UPDATE: I have found this page via Congress.gov providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes." Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:
Rep. Yoho, Ted S. [R-FL-3]
Rep. LaMalfa, Doug [R-CA-1]
Rep. Flores, Bill [R-TX-17]
Rep. Chabot, Steve [R-OH-1]
Monday, September 26, 2016
Making the argument for legalization as the best response to the US heroin problems
This new opinion piece by Bonnie Kristian at The Week, headlined "Legalize heroin," makes a full-throated argument for why eliminating criminal law rather than making it more tough would be the best way to deal with the current heroin epidemic. Here are excerpts:
The U.S. government should legalize heroin. The last five years have seen heroin overdose deaths dramatically spike in the United States, from just over 3,000 in 2010 to more than 10,500 in 2014, the latest year for which the National Institutes of Health provides data. In fact, drug overdose deaths now outpace car crashes in taking American lives, and about half those overdoses are attributable to heroin and other opioids....
Recent history and present practicalities alike make clear that the best way to cut down on heroin abuse is to legalize it — or at the very least, decriminalize it. The crown jewel of evidence for this point is the experience of Portugal, whose culture and form of government are similar enough to our own to make comparison reasonable. In 2001, Portugal decriminalized all drugs. All drugs.
A decade later, hard drug abuse had dropped by half. Drug overdose deaths in Portugal are now all but nonexistent: just three for every million people each year. (Were overdose deaths happening in America at a Portuguese rate, we'd see fewer than 1,000 die annually, more than a 90 percent drop from the current numbers on opioid-related deaths, let alone total overdose deaths.) Portuguese use of sketchy "legal" substitutes is way down, too, because there’s no need to mess with dangerous unknowns when you’ll only get a small fine and maybe a rehab referral if you’re caught with the real thing. Heroin addiction — suffered by fully 1 percent of Portugal's population pre-decriminalization — is estimated to have dropped by about half, and most of those who are still addicted are on substitution treatment and in no statistical danger of overdose.
By contrast, here in the States, strict prohibition has utterly failed to prevent drug use rates at world-record levels. Drug war spending is perhaps the only thing to spike faster than heroin addiction, and we have nothing to show for it. In 2016, Rolling Stone notes, "the federal government is spending more than $1,100 per person to combat the habit of America's 27 million illicit-drug users, and 22 million of them use marijuana." With more than $1.5 trillion down the drain, U.S. addiction rates have utterly failed to improve.
If anything, the drug war makes illicit opioid use more dangerous than it otherwise would be. Heroin abuse often begins as an extension of opioid addiction fostered by over-prescription, and once users get their supply from the street instead of the pharmacy, prohibition produces tainted and mislabeled products that make overdose more likely — just like it did with alcohol nearly a century ago.
Criminalizing the heroin supply chain produces a risky and therefore lucrative market for violent criminals, leading to casualties far beyond the toll of drug abuse itself. To argue for legal heroin "does not, at first blush, appear to put one on the side of the angels," explains Harvard's Danielle Allen, but "the war on drugs drives violent crime, which in turn pushes up incarceration and generates other negative social outcomes. You just can't move $100 billion worth of illegal product without a lot of assault and homicide."
Prohibition even makes safe treatment less likely for addicts who know they have a problem and actively want to change their lives. After decriminalization, Portugal saw the rate of people seeking addiction treatment nearly double, because now there is essentially no downside to doing so. With a looming threat of jail or coercive court-mandated rehab stints shaped as much by policy goals than each individual's unique health care needs, the same cannot be said here....
Heroin addicts need relief too — relief from their addiction itself, yes, but also from dangerous products, organized crime, and a government eager to lock them up in a prison environment hardly conducive to improving physical or mental health. Of course, there is an element of choice in opioid abuse that is missing from a cancer diagnosis. Still, the heroin epidemic is a health crisis, and legalization is a viable and practical solution that compassion dictates we must consider.
Friday, September 23, 2016
Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions
I find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate. These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:
The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”
Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.
The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.
At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces). In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.
In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.
I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.
September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)
Sunday, September 18, 2016
Who will go after the biggest (legal) drug dealers still contributing to the biggest modern drug harms?
The question in the title of this post is prompted by this new AP article headlined "Drugmakers fought state opioid limits amid crisis." Here is how the article starts:
The makers of prescription painkillers have adopted a 50-state strategy that includes hundreds of lobbyists and millions in campaign contributions to help kill or weaken measures aimed at stemming the tide of prescription opioids, the drugs at the heart of a crisis that has cost 165,000 Americans their lives and pushed countless more to crippling addiction.
The drugmakers vow they're combating the addiction epidemic, but The Associated Press and the Center for Public Integrity found that they often employ a statehouse playbook of delay and defend that includes funding advocacy groups that use the veneer of independence to fight limits on their drugs, such as OxyContin, Vicodin and fentanyl, the narcotic linked to Prince's death.
The industry and its allies spent more than $880 million nationwide on lobbying and campaign contributions from 2006 through 2015 — more than 200 times what those advocating for stricter policies spent and eight times more than the influential gun lobby recorded for similar activities during that same period, the AP and Center for Public Integrity found.
The drugmakers and allied advocacy groups — such as the American Cancer Society Cancer Action Network — also employed an annual average of 1,350 lobbyists in state capitals from Olympia to Tallahassee during that span, when opioids' addictive nature came under increasing scrutiny. "The opioid lobby has been doing everything it can to preserve the status quo of aggressive prescribing," said Dr. Andrew Kolodny, an outspoken advocate for opioid reform. "They are reaping enormous profits from aggressive prescribing."
Prescription opioids are the cousins of heroin, prescribed to relieve pain. Sales of the drugs quadrupled from 1999 to 2010, rising in tandem with overdose deaths. Last year, 227 million opioid prescriptions were doled out in the U.S., enough to hand a bottle of pills to nine out of every 10 American adults....
Doctors continue to prescribe opioids for ailments such as back pain and headaches, even though studies have shown weak or no evidence that the drugs are effective ways to treat routine chronic pain — and even though they come with the risk of addiction. In 2007, executives at Purdue, the maker of OxyContin, pleaded guilty to misleading the public about the drug's addictive nature and agreed to pay $600 million in fines.
Lawmakers across the country have started attempting to limit the flood of prescribing and prevent overdoses. In 2012, for example, New Mexico considered a bill to limit initial prescriptions of opioids for acute pain to seven days to make addictions less likely and produce fewer leftover pills that could be peddled illegally. The bill died in the House Judiciary Committee. "The lobbyists behind the scenes were killing it," said Bernadette Sanchez, the Democratic state senator who sponsored the measure.
Any distintive thoughs, dear readers, on notable new video, "Jay Z: 'The War on Drugs Is an Epic Fail'"?
This past week, the New York Times released this "op-ed" and video, which is embedded below, under the headline "Jay Z: ‘The War on Drugs Is an Epic Fail’." This description of the video is provided by Asha Bandele, a senior director at the Drug Policy Alliance:
This short film, narrated by Jay Z (Shawn Carter) and featuring the artwork of Molly Crabapple, is part history lesson about the war on drugs and part vision statement. As Ms. Crabapple’s haunting images flash by, the film takes us from the Nixon administration and the Rockefeller drug laws — the draconian 1973 statutes enacted in New York that exploded the state’s prison population and ushered in a period of similar sentencing schemes for other states — through the extraordinary growth in our nation’s prison population to the emerging aboveground marijuana market of today. We learn how African-Americans can make up around 13 percent of the United States population — yet 31 percent of those arrested for drug law violations, even though they use and sell drugs at the same rate as whites.
Notably, this Vox commentary by German Lopez provides a sharp review of this effort via its extended headline: "Jay Z’s viral video about the war on drugs gets mass incarceration all wrong: The video is well argued and beautifully drawn. It’s also completely wrong."
Friday, September 16, 2016
GOP Congressman Sensenbrenner explains why federal criminal justice reform is necessary to fix a "broken system" which is "fiscally unsustainable" and "morally irresponsible"
Representative Jim Sensenbrenner has a long and dynamic history working on federal criminal justice issues, and not that long ago he was an ardent supporter of many mandatory minimum sentencing provisions. But more recently, Rep Sensenbrenner has become a potent voice calling for federal reforms, and his latest pitch on that front appear in this new commentary headlined "Criminal Justice Reform Bills Are On The Table In Congress. Now It Needs To Pass Them." Here are excerpts from this piece:
In 2013, House Judiciary Chairman Bob Goodlatte (R-VA) created the Over-criminalization Task Force which examined the depth, seriousness, and complexities of the problems facing our federal criminal justice system. The findings that came from the task force allowed Members on the Committee to identify key problem areas and begin the reform process. Last year, momentum for criminal justice reform reached an all-time high. It united a wide range of law enforcement and political organizations, advocacy groups, and Congressional leaders under a common goal: to fix our broken system....
Although a large number the nation’s 2.3 million inmates deserve their place behind bars, too many low-level, non-violent individuals are caught up in broken system. Their incarceration diverts limited resources away from other priorities, such as policing and the capture and punishment of violent and career criminals. For too long, the pressing need for criminal justice reform has been put on the backburner. It has led to increasing financial burdens on taxpayers, violent outbursts in economically depressed neighborhoods throughout the nation, and the breakdown of hundreds of thousands of American families.
Fifty percent of the current prison population suffers from substance abuse problems, mental health issues, or a combination of both. Our criminal justice system is not equipped to provide these individuals with the help they need to gain control of their lives and acquire the critical work skills necessary to successfully re-enter society and the workforce. Without these basic tools, the likelihood of recidivism is high....
Each piece of legislation currently on the table addresses specific problems in the current system and offers common sense, fiscally responsible solutions that will increase public safety, support law enforcement and victims of crime, and decrease the overwhelming financial burden on hardworking taxpayers. However, none of it matters unless Congress is willing to pass legislation and President Obama is ready to sign it.
At the heart of federal criminal justice reform is the desire to create a better way forward for every American struggling under our broken system. Families ripped apart by incarceration, communities divided by a seemingly impenetrable wall between law enforcement and the neighborhoods they protect, and an ineffective justice system not only weakens the fabric of society, but hinders economic growth and opportunity for all Americans.
Three years ago, Congress began a journey to rectify the injustices in our federal criminal justice system. Right now, we have the opportunity to finish the job and pass meaningful and effective reform legislation. Our system cannot continue on its current trajectory. It’s not only fiscally unsustainable, but morally irresponsible. We must do better and we can do better.
Prior recent posts regarding some federal CJ work and statements by Rep Sensenbrenner:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
- Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
September 16, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama
USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama. The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:
For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.
As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.
A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.
The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.
While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”
There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.
Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.
But increasingly, recipients of Obama's mercy are years away from paying their debt to society.
White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."
Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.
But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....
"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."
Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.
While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.
And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."
September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Thursday, September 15, 2016
Interesting (and already dated) census of problem-solving courts from BJS
The Bureau of Justice Statistics just released this interesting new report titled Census of Problem-Solving Courts, 2012," and here are its identified " HIGHLIGHTS":
In 2012, 65% of all problem-solving courts accepted cases after the defendant entered a guilty plea.
More than half (56%) of problem-solving courts in 2012 did not accept applicants with a history of violent crime and nearly two-thirds (65%) did not accept applicants with a history of sex offenses.
In 38% of veterans courts and 11% of domestic violence courts, applicants with a history of violent crime were ineligible.
Fifty-three percent of all problem-solving courts active in 2012 were established prior to 2005.
Most veterans courts (55%) were established between 2011 and 2012.
Participants in problem-solving courts spent a median of 1 year in the program in 2012.
Overall, 92% of participants who exited from problem-solving courts in 2012 successfully completed the program.
Twenty-one percent of youth specialty courts reported that 100% of participants completed the program in 2012.
Successful program completion commonly included dismissal of the case (61%) or a suspended sentence (40%).
Fewer than half (44%) of all problem-solving courts tracked participant progress after program completion in 2012.
Grover Norquist and Wade Henderson say now is the time for federal statutory sentencing reform
This new National Review commentary authored by the notable pairing of Grover Norquist and Wade Henderson makes the case for having Congress finally getting sentencing reform to the desk of Prez Obama now. The piece is headlined "No Better Time Than Now to Pass Justice Reform," and here are excerpts:
Picture this: a legislative reform initiative that has garnered more than 70 percent approval from both Democrats and Republicans in state after state. Imagine a package of reform bills that has brought together elected officials from the left and right and passed through House committee with near unanimous support. Now consider that the speaker of the House is the biggest champion of these bills.
What issue has brought together both ends of Pennsylvania Avenue and has civil-rights groups working with top prosecutors and law enforcement? Justice reform. And given all this success, you would say these policies have every chance of becoming law, right? It’s not that simple, but it should be.
In the months since bipartisan-backed sentencing- and prison-reform legislation was introduced in the House of Representatives, Congress managed to name about ten post offices, revised coastal-barrier boundaries, ordered the Mint to create commemorative coins, and adopted bison as the national mammal of the United States.
In the states during that time, Minnesota introduced and passed the most significant reforms to its drug laws in 30 years. These bills reduced mandatory minimums for low-level drug crimes and devoted greater resources to treatment instead of incarceration. Iowa took similar steps. Maryland repealed mandatory minimum sentences for nonviolent drug offenses. Even states with high incarceration rates took action. Oklahoma and Louisiana eliminated employment barriers for those with criminal records. And Kentucky passed one of the most aggressive expungement bills in the country that seals criminal records for certain offenses.
It’s time for Congress to act on justice reform. The states have proven that treatment and rehabilitation in lieu of incarceration can often provide better outcomes. Unnecessarily harsh sentences for nonviolent offenders do not make better citizens; they lead them to commit more offenses. We also know that the easier it is for someone who leaves incarceration to get a job, improve his education, and support his family, the better shot he has at turning away from crime altogether.
In an election year, real reforms can easily get jettisoned for campaign-trail antics. Yet we know justice reform makes for good politics as well as good policy. In polling in battleground states such as Florida, Nevada, Ohio, and North Carolina, support for reforms that would reduce mandatory minimum sentences and focus resources on rehabilitation ranges from the low 70s to the high 80s for both Republicans and Democrats. These numbers show that the risk lies not in supporting these reforms, but in opposing them.
When one in three American adults has a record, these issues are now affecting every corner of society. That explains why the diversity of support for justice reform spans the breadth and depth of our political ideologies. Whether it’s about redemption and second chances, as is the case for religious groups such as the Southern Baptist Convention, or about reducing the cost of an ineffective system, as is the case for Americans for Tax Reform and many other conservatives, millions of Americans from all different perspectives are getting behind this movement....
Our justice system should be a part of the solution to crime and its root causes. We can do better than using a one-size-fits-all sentencing regime that lumps nonviolent offenders with violent ones. And when some estimates have re-arrest rates for ex-offenders at 65 percent within three years, we cannot afford to continue the status quo. The reforms on the table would improve outcomes while ensuring that public safety is a top priority.
The best chance we have of passing this legislation is now. The political stars are aligned, and support for reform is at a zenith. We need our elected officials to seize this moment and pass legislation that saves money and makes us safer. Congress must not squander this opportunity.
Tuesday, September 13, 2016
"As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next?"
The title of this post is the enjoyably provocative headline of this notable new Reason piece authored J.D. Tuccille. Here are some excerpts which appeal to my libertarian instincts while also highlighting why I think much more that just the wicked weed is implicated in movements to reform modern marijuana laws:
As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics — a predecessor agency to the DEA — and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.
"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State. "The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."
McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.
But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around. "Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.
People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.
Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities — urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people — African-Americans, in particular — whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.
Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.
So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall. Prohibition has its own logic — of control and power — that has very little to do with the specific prohibition at any given moment. Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.
So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove. What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place. Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.
In addition to providing an amusing post title, this commentary inspires me to remind readers once again that one way to keep up with marijuana prohibition winding down is to regularly read my Marijuana Law, Policy and Reform. There you will find these recent posts, among many, many others:
- Crimmigration and cannabis: "Marijuana Is Legal in Colorado — But Only If You're a U.S. Citizen"
- "Study: Can marijuana improve PTSD symptoms for veterans?"
- New medical marijuana regulations create rift among California's marijuana policy reform advocates
- New research indicates that daily marijuana users are less fat
Wednesday, August 31, 2016
Clemency advocate explains her view on "How to inspire criminal justice reform"
The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark." Here are excerpts from her commentary:
As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America. The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population. Today, there are over 2.2 million people incarcerated in this country.
The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.
While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order. The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.
#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions. But with no parole in the federal system, he has been fundamentally condemned to die in prison.
Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences. Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.
Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....
While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it. Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America. It screams that a person is beyond hope, beyond redemption. It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.
Recently, I went to visit Corey in prison to discuss his pending clemency petition. As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself. I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.
Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me. I no longer wanted to be just a lawyer. I wanted to use this platform to promote the greater good. Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....
Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive. And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote. We must urge Congress to pass this overdue, life-changing legislation.
But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....
Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families. Reform is desperately needed. The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing. After all, there is nothing more urgent than freedom.
Saturday, August 27, 2016
Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"
In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This new Washington Post article reports on recent developments on this front under the headline "Nearly 2,000 have died in Duterte’s ‘war on drugs’ in the Philippines. One is a 5-year-old girl." Here are excerpts:
Philippine President Rodrigo Duterte's "war on drugs" has left hundreds of people killed in less than two months. One of the most recent victims — and possibly the youngest — is 5-year-old Danica May Garcia, who was shot in the head on Tuesday.
According to the online news website Rappler, two motorcycle riders barged into the girl's family's home in Dagupan City, more than 130 miles northwest of Manila, while they were having lunch and opened fire. The men's main target was Danica's grandfather, 53-year-old Maximo Garcia, who had already surrendered to police a few days earlier after he was told he was on a drug watch list. Garcia ran to the back of the house toward the bathroom as the gunmen chased and shot at him. Danica, who was stepping out of the bathroom, was gunned down, Rappler reported.
"This is so painful for us," Garcia's wife, Gemma, told the Philippine Daily Inquirer. "I would miss the nights when Danica would massage us until we fell asleep. I would miss her laughter when she teased her mother." Gemma Garcia, who runs a small eatery, told the Inquirer she was surprised to find out that her husband was a drug suspect, saying he had never been involved in illegal drugs. Maximo Garcia used to earn a living by driving a tricycle, a form of auto rickshaw commonly used to carry passengers in the Philippines. But he had to stop after he suffered a stroke three years ago, according to the paper.
Superintendent Neil Miro, Dagupan's police chief, told the Inquirer that 26 suspected drug dealers have been killed in the city as of Tuesday. Nationwide, more than 1,900 killings have occurred since Duterte took office June 30, according to estimates by several media outlets. Nearly 700,000 drug users and peddlers have turned themselves in, according to Reuters.
Duterte, a tough-talking former mayor of the southern city of Davao, ran on a pledge to eradicate his country's problems with drugs. Illegal drugs, particularly methamphetamine, locally known as "shabu," have been rampant in the Philippines for decades. The 71-year-old former prosecutor has publicly advocated killing suspected criminals, even once urging citizens to take matters into their own hands.
On Monday, Philippine senators started an investigation into the rising death toll under Duterte's administration. Witnesses, with their faces covered to protect their identities, testified about how their loved ones were arrested and gunned down by police. Sen. Leila de Lima, head of the Senate justice committee leading the investigation, said in her opening remarks Monday that she's concerned about the spate of killings that appear to have been carried out by vigilantes, not by the government. "What is particularly worrisome is that the campaign against drugs seems to be an excuse for some — may I just emphasize, some — law enforcers and other vigilantes to commit murder with impunity," de Lima said.
De Lima has been accused of having an affair with her former driver and authorizing him to collect money from drug lords detained in the New Bilibid Prison in Muntinlupa City, Metro Manila when de Lima was justice secretary. De Lima has denied the allegations.
Philippine National Police Director General Ronald dela Rosa reported to the Senate committee earlier this week that of those who died, only 756 were killed during confrontations with police. Dela Rosa, nicknamed "Bato," which means rock or stone, told the Senate committee that the drug suspects were killed because they resisted arrest. "If they did not resist, they would still be alive," dela Rosa told the committee, according to the Inquirer.
The majority of the killings — 1,160 — were committed outside police operations, mostly by vigilantes, and are under investigation, dela Rosa said. He added that not all the deaths are drug-related.
International advocacy groups, meanwhile, have been vocal in opposing Duterte's policy. Phelim Kine, deputy director of the Human Rights Watch's Asia Division, wrote Thursday about Danica May's death. Kine noted that Philippine Justice Secretary Vitaliano Aguirre defended the killings linked to Duterte's war on drugs. "If you're in the Philippines, you will choose to kill these drug lords," Aguirre said. "Desperate times call for desperate measures. So this is what the president is doing, and we support it."
Amnesty International has called on Duterte to "break the cycle of human rights violations" and to curb his "inflammatory" rhetoric. "President Duterte has been elected on a mandate to uphold the rule of law. It is encouraging that he spoke of honouring the Philippines' obligations under international law in his inauguration speech," Rafendi Djamin, Amnesty International's director for Southeast Asia and the Pacific, wrote in June. "But now he is in power, he needs to lend substance to those words and break with his earlier rhetoric."...
Gemma Garcia said that her granddaughter's death has left her and her family in fear for their lives. "We are afraid to stay here. But the problem is, where will we go?" Gemma Garcia told the Inquirer. "The killers may come back for my husband."
When I discuss deterrence and related utilitarian justifications for various sentencing and punishment schemes, I often suggest that a "hard core" utilitarian with no concens about retributivist/desert-based limits on punishment might be willing to consider not just summary executions of convicted criminals, but even executions of relatives of criminals as part of an effort to dramatically deter certain types of wrong-doing. This report suggests that Philippine Prez Duterte's regime is functionally trying out what I always considered just a hypothetical thought experiement.
Prior related posts:
- President-elect in Philippines eager to bring back death penalty "especially if you use drugs"
- New Philippines Prez wasting no time executing deadly "tough on crime" plans
Friday, August 26, 2016
"Where Recreational Marijuana Is Legal, Should Those in Prison for Weed Crimes Get a Puff, Puff, Pass?"
The question in the title of this post is not only one that I have given a lot of thought to in recent years, but also the headline of this recent article from The Root. The piece usefully highlights that California's marijuana legalization initiative to be voted upon in November speaks a bit to this issue. Here are excerpts from the piece:
Twenty years ago, Rico Garcia was 21 when he got caught up in a marijuana sting in Colorado with a friend who wanted to buy some weed. The seller turned out to be a police informant, and Garcia and his friend were arrested. “The police came and arrested us and said we were selling weed,” says Garcia, now a 41-year-old marijuana advocate who runs Cannabis Alliance for Regulation and Education. “My friend said it was his, but … under Colorado law at the time, 8 ounces was possession with intent and I got a felony.”
Garcia says he was a first-time offender and a public defender got him to agree to accept a plea deal. He didn’t realize the full ramifications of having such a charge on his record. “They said, ‘No jail’ — that’s how they get brown people — and I said, ‘That sounds nice,’” recalls Garcia, who is Puerto Rican. He says he got four years’ probation and was released from it in two years, but the felony is still affecting his life. “You’re pretty much disqualified for housing. … Most who could give you a loan for a car or house give you a different rate or simply won’t lend to you. You can’t own a firearm, even in a pro-gun state; you can’t get any government grants or hold certain occupational licenses.”
Even though medical and recreational use of marijuana is legal under most circumstances in Colorado, Garcia’s felony precludes him from being part of the weed boom the state is enjoying, a problem that plagues many people of color trying to get into the weed business. There’s also a debate about the fate of nonviolent offenders currently incarcerated for weed crimes in states where recreational marijuana is now legal. Some marijuana advocates support the idea of state pardons for offenders incarcerated for such crimes as more states consider legalizing recreational marijuana....
[T]here has been some debate among marijuana advocates over whether lawmakers and voters would support such an effort involving weed crimes because they had to walk such tightropes to get legislation for medical and recreational marijuana approved in the first place. California — where most advocates expect Proposition 64, the Adult Use of Marijuana Act, to pass in November in a state that has had a medical-marijuana program for 20 years — could set a national standard for the fate of nonviolent marijuana offenders caught up in the prison system.
Not only does Proposition 64 reduce the current penalty for selling marijuana for nonmedicinal purposes from up to four years in prison to six months in jail and a fine of up to $500, but it also includes big changes for those previously convicted of marijuana crimes. Those serving sentences for activities that are either legal or subject to lesser penalties under the new measure would be eligible to be resentenced. Plus, those who have already done their time could apply to have their convictions removed from their records....
But the politics surrounding whether nonviolent marijuana users should be pardoned or allowed to have their records expunged completely are complicated. In Colorado, Andrew Freeman says, people can apply to have their felony conviction for a marijuana offense that is no longer illegal under Amendment 64 changed to a misdemeanor. But that stays on your record.
Freedman notes that few of the people still in prison in Colorado for marijuana are there only for a single, nonviolent offense, which would make it easy for them to be released. According to a 2014 report (pdf) by the state’s Department of Corrections, there are only 71 nonviolent marijuana offenders among Colorado’s 20,300 inmates....
Tom Angell at the Brooklyn, N.Y.-based Marijuana Majority breaks it down even further, saying that the pardoning of nonviolent marijuana offenders has been part of a general debate among advocates about what is the best, most comprehensive marijuana-reform proposal that can be put on the ballot and garner the support of voters.
“I think there’s some question as to whether a sufficient number of voters would be skittish about the notion of releasing people from prison en masse,” Angell says. “In an ideal world, we want to release all the marijuana offenders yesterday! We absolutely do. But this is politics and reality, and you can’t let the perfect become the enemy of the good. We need to achieve what is achievable today and build on those victories and keep getting wins on the scoreboard.”
This Root story usefully highlights why folks interested in criminal justice and sentencing reform ought to keep a special eye on discussions and developments with marijuana reform in California this election season. Moreover, as this review of some recent posts from my Marijuana Law, Policy & Reform blog should highlight, I see no shortage of interesting marijuana reform issues that ought to interest criminal justice and civil rights folks:
August 26, 2016 in Clemency and Pardons, Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Thursday, August 25, 2016
You be the state legislator: how should Ohio respond to new data showing drug overdose deaths reaching another record high in 2015?
The question in the title of this post is the question I plan to be asking in coming days to students in both my first-year Criminal Law class and in my upper-level Sentencing Law & Policy class. It comes to mind in response to the "breaking news" alert I received from my local Columbus Dispatch linking to this new article reporting on new data under the headline "Drug overdose deaths pushed to another record high in Ohio." Here are some data details:
Drug overdoses took the lives of a record 3,050 Ohioans last year, more than one-third from fentanyl, a super-potent opiate often mixed with heroin. Across Ohio, someone died from a drug overdose every two hours and 52 minutes on average all year long in 2015.
The annual report on unintentional drug overdose deaths released today by the Ohio Department of Health showed the toll from all drugs was 20.5 percent higher than 2014, a disappointment to state officials who have been working for years on many fronts to curb the drug-related carnage.
While heroin deaths rose, fatalities from fentanyl, a synthetic narcotic 30 to 50 times more potent than heroin and up to 100 times stronger than morphine, soared to 1,155 last year, more than double the 503 deaths in 2014. The vast majority involved illegally produced fentanyl, not the prescription drug commonly given to end-stage cancer patients.
The 2015 deaths bring the total to nearly 13,000 overdose victims in the state since 2003. The report was compiled from Ohio's 88 county coroners....
"These are 3,050 tragedies that could have been avoided," said Tracy Plouck, director of the Ohio Department of Mental Health and Addiction Services. "It's very disappointing, but we have a responsibility as leaders in the state to continue to press forward ... This absolutely does not mean we have given up."
Gov. John Kasich, who often spoke passionately about the drug epidemic during his Republican presidential campaign, said in an interview that the state continues "playing a rear guard action ... But I believe we’re making progress. I feel we’re doing every thing we possibly can. We're not looking the other way. We're not putting our heads in the sand. "This is not about politics. This is about life."
Kasich said the drop in opiate pain pills prescriptions is a good sign because people usually become addicted to painkillers before moving to heroin. “We knew when we started this battle five years ago that progress wouldn’t be easy, but we are well prepared to stay on the leading edge of fighting this epidemic thanks to the multi-faceted strategies we have put into place," said Dr. Mark Hurst, medical director of the Ohio Department of Mental Health and Addiction Services.
Public Safety Director John Born said the higher numbers "are motivating because we see the impact of drugs on the quality of life and life itself." Born said troopers already have seized 118 pounds of heroin this year, compared to a total of 304 pounds seized from 2010 to 2015. The report showed Franklin County overdose deaths soared to 279 last year, a 42 percent jump from 196 in 2014. The county leads the state in heroin seizures by the Highway Patrol, 76 pounds from 2010 through 2015.
People 25 to 34 years old were the most common fentanyl victims, with men twice as likely to die from an overdose. Every drug category except prescription pills, alcohol and "unspecified" rose in 2015 compared to 2014. Heroin deaths rose to 1,424 from 1,196 (up 19 percent); prescription opioids (667 from 672, down 1 percent); benzodiazepines (504 from 420, up 20 percent); cocaine (685 from 517 (up 32 percent); alcohol (380 from 383, down less than 1 percent); methadone (108 from 103, up less than 1 percent); hallucinogens (61 from 49, up 24 percent); barbiturates (19 from 6, up 200 percent); and other unspecified (194 from 274, down 29 percent).
Hamilton County reported the most fentanyl-related deaths with 195, followed by Summit, 111; Butler, 104; Montgomery, 102; Cuyahoga, 83; Clermont, 54; Clark, 48; Lucas, 41; Franklin, 40; Stark, 26; Trumbull, 25; Lorain, 21, and Greene, 20.
Dr. Mary DiOrio, medical director of the Department of Health, said the state has taken several steps in the drug fight, including establishing the Start Talking education program aimed at young people, increasing law enforcement efforts, encouraging physicians and pharmacists to use the online drug monitoring system, and creating opioid prescribing guidelines.
The state last year asked the federal Centers for Disease Control and Prevention to step in to study the fentanyl problem. Officials said they will take further action this year, asking state lawmakers to pass tougher laws for selling fentanyl, increasing money for naloxone, expanding treatment options, and adding drug courts.
As regular readers of my blog Marijuana Law, Policy & Reform know, one possible (and surely controversial) legislative response to this problem would be to explore more rigorously and expeditiously whether legalization of marijuana might be a port to consider in this deadly drug overdose Ohio storm. As noted in this post, well over six month ago, US Senator Elizabeth Warren wrote to the Center for Disease Control and Prevention to request more research on wether marijuana reform might help address the national opiate abuse problem. I would be very eager to see Ohio official following-up on this front so as to more fully explore the prospect that has been shown in some existing research that making marijuana more readily and legally accessible can contribute usefully to the needed "multi-faceted strategies" for dealing with this pressing public health problem
Some recent recent related posts from my blogs:
- "Elizabeth Warren Urges CDC To Consider Cannabis To Solve Opioid Epidemic"
- Minnesota survey suggests marijuana reform can help with opioid issues
- "Legalize marijuana and reduce deaths from drug abuse"
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "Could medical marijuana solve Ohio's opioid problem?"
- "How Drug Warriors Helped to Fuel the Opioid Epidemic"
Wednesday, August 24, 2016
Should I feel guilty finding delicious ironies in reports of condemned California murderers killing themselves with smuggled illegal drugs?
The question in the title of this post is my sincere uncertainty concerning my reaction to this new lengthy Los Angeles Times article headlined "Illegal drugs are flowing into California's most guarded prisons — and killing death row inmates." Here is how the article starts and ends:
Condemned murderer Michael Jones was acting strangely and profusely sweating when guards escorted him in chains to the San Quentin medical unit that doubles as the psych ward on death row.
“Doggone, I don’t think you’re ever going to see me again,” he told a fellow inmate, Clifton Perry. Hours later, Jones was dead. Toxicology tests later found that he had toxic levels of methamphetamines in his blood.
The condemned inmates on California's death row are among the most closely monitored in the state. Death row’s 747 inmates spend most of their time locked down, isolated from the rest of the prison system under heavy guard with regular strip searches and checks every half-hour for signs of life. Still, six death row inmates died between 2010 and 2015 with detectable levels of methamphetamines, heroin metabolites or other drugs in their system, according to Marin County coroner records.
Three of them had toxic levels of drugs, including one in whose intestines were found five snipped fingers of a latex glove, each packed with methamphetamine or marijuana. He had overdosed when they burst. A 70-year-old man among the three died of acute methamphetamine toxicity. He left a stash of marijuana in his cell. State psychological reports and court files document at least eight non-fatal drug overdoses that required death row inmates to be hospitalized during this period.
Jones' death was reported as a suicide. In the psych ward, he attempted to strangle himself with an electrical cord. He was cut free by officers but died 10 minutes later. The coroner's report showed that Jones bore signs of chronic drug abuse. State corrections officials declined to discuss the case or provide data on drugs found on death row — at first citing that investigation and then citing a wrongful death claim filed by Jones’ family. The department provided a statement saying the prison has thwarted past attempts by visitors to bring drugs into San Quentin.
According to data from the U.S. Bureau of Justice Statistics and the state prison medical office, the drug-related death rate in California prisons is seven times higher than that of prisons in the rest of the country. “Drugs have considerable value inside prison and so some inmates have a very strong incentive to procure them," the statement said. "Regardless of the security level of the inmate, the presence of any contraband items is concerning to us.”
The overdoses on death row mirror the larger problem with drugs in California’s prison system as a whole. From 2010 to 2015, 109 inmates died of overdoses, according to state figures. California's prison drug trade is notoriously robust. The drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country, according to data from the U.S. Bureau of Justice Statistics and the state prison medical office.
Reports to the Legislature show that as many as 80% of inmates in some cell blocks tested positive for illegal substances in 2013. The same year, the state's prison watchdog, the independent Office of Inspector General, chastised corrections officials for making "very little or no effort" to trace the source of drugs when inmates overdose....
Because of the high security on death row, some who have worked at San Quentin suspect that the drug trade is abetted by prison staff. During his tenure as a death row psychologist, Patrick O’Reilly said in an interview that he discovered a psychiatric technician bartering alcohol and amphetamines for inmates’ prison-prescribed opiates. Similarly, the inspector general's office reported that a death row officer in 2011 was accused of buying morphine from condemned inmates. The report states she paid with ramen noodles and candy.
Outside of death row, the trade takes place on an enormous scale. This spring, federal agents busted a Southern California prison narcotics ring in which a state drug counselor allegedly smuggled $1 million of meth and heroin sealed in potato chip bags to inmates in her treatment group. The state prison guard union has long raised objections to vigorous screening of guards as they arrive and leave work, noting that the state would have to pay large amounts for the extra time that would add to each shift. The union "supports the department's efforts to keep drugs out of prison," said spokeswoman Nichol Gomez. "Anyone who brings contraband inside prisons should be held accountable. ... The majority of correctional officers take their oath seriously. "
All of the men on San Quentin’s death row are there for murder. Many arrived on death row with long histories of drug addiction. Most killed their victims during robberies or gang fights, but the population also includes psychopaths and serial killers. Until a psychiatric unit for the condemned was opened in 2014, severely mentally ill and psychotic inmates were housed with the rest of the condemned.
Former San Quentin Warden Jeannie Woodford, state prison director under Gov. Arnold Schwarzenegger, said extreme idleness and the cramped, ill-suited confines of death row complicate drug abuse. “Idleness is such a problem and it leads people to self-medicate,” Woodford said.
Although guards are supposed to randomly search cells each shift as a curb against drugs, weapons and other contraband, one former San Quentin corrections officer said staffing issues have made it impossible for guards to do all the required checks. Moreover, the amount of property that condemned inmates accumulate over decades of confinement clutters many cells. "What is said and what is done are two different things," said Tony Cuellar, a former San Quentin officer. In that environment, Cuellar said, officers "picked and chose" when to try to confront a condemned drug user.
There are soooooo many ironies in this report, I do not know where to start. In an effort to keep them straight (and to encourage comments about which irony is most remarkable), I will provide a numbered list of just some of the ironies that jump out at me:
- California has not conducted an execution of a condemned murderer in over a decade due in large part to the incompetence of prison officials and others in California in acquiring and handling drugs involved in its planned execution protocols ... and yet corrupt prison officials seem to be able to indirectly help condemned inmates access the drugs with which they are killing themselves.
- Many abolitionist have complained and litigated aggressively to try to prevent prison officials in many states nationwide from finding ways to "smuggle" into the state the drugs needed to conduct lawful (painless?) official executions ... and yet California prison officials are smuggling drugs directly to condemned inmates in ways that functionally facilitate what are essentially unlawful (painful) self-executions.
- This article suggests that we should be seriously concerned that the "drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country" ... and yet that (stunningly high) drug-related death rate in California prisons is still almost half of the drug-overdose death rate — reported to be at over 32 deaths from drug overdose per 100,000 inhabitants — according to the latest figure in the state of West Virginia.
- With a death row population of less than 1000, just a single overdose per year on California's death row is a relatively high rate ... and yet the reality that so many arrived "on death row with long histories of drug addiction ... [and murderered during] robberies or gang fights" surely suggests the real possibility that a many of those unfortunate souls now condemned to die in California have lived a lot longer on death row than they might have lived on the mean streets of California.
I could go on, but I already am starting to feel mean and crass about how I am responding to this new report from California's always notable death row.
Tuesday, August 23, 2016
Would it be useful for President Obama to "formally declare an end" to the drug war?
The question in the title of this post is prompted by this New Yorker commentary authored by Jelani Cobb and running under this full headline: "A Drawdown on the War on Drugs: The President’s commuting of sentences and an end of the use of private prisons signal potentially meaningful changes in how the United States handles drug abuse." Here are the closing two paragraphs that lead to the question:
There is an additional gesture that the President could make: he could formally declare an end to the war. In 1996, when Bill Clinton announced that “the era of big government is over,” his words were both aspirational and a reflection of policies favored by Republicans and a growing number of centrist Democrats. There’s an emerging and similarly bipartisan consensus for changing the policies that have led to mass incarceration. For a sitting President to declare a conclusion to the most disastrous domestic policy of our time might, even if premature, perhaps mark at least the beginning of its end.
Last year, the Justice Department reported the first decline in the federal prison population in thirty-three years, and a meaningful, if incremental, change in the way that we approach the problem of drug abuse in the United States. The armchair forecast holds that the President’s legacy will be anchored by his handling of two wars abroad. But history may have equal regard for the means by which he handles the one he inherited at home.
I share this author's sense that it could be beneficial for Prez Obama to assert formally that the drug war is over. At the same time, with US government spending and debt at historic levels 20 years after Prez Bill Clinton asserted that “the era of big government is over,” it is not obvious that any policy realities are certain (or even likely) to enduringly reflect such political rhetoric.
Tuesday, August 16, 2016
Ninth Circuit panel rules appropriations rider precludes federal prosecution of individuals in complaince with state medical marijuana laws
A Ninth Circuit panel today finally ruled in US v. McIntosh, No. No. 15-10117 (9th Cir. Aug. 16, 2016) (available here), on a series of appeals concerning "whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws." Here is a key passage from the heart of the opinion:
DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws. By officially permitting certain conduct, state law provides for nonprosecution of individuals who engage in such conduct. If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.
We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.
Some previous related posts:
- Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws
- Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?
- Notable developments in dispute over meaning and application of Section 538 limiting DOJ funding
- Federal judge decides (finally!) that Congress has limited DOJ prosecution of state-legal marijuana businesses
"Want to Stop Gun Violence? End The War On Drugs"
The title of this post is the title of this notable commentary by Jay Stooksberry that backs up an effective argument with lots of helpful links to support his claims. Here are excerpts (with links from the original):
Every December 5th, American beer, wine, and spirit enthusiasts celebrate Repeal Day. It was on this day in 1933 that the United States officially passed the 21st Amendment, effectively ending the failed “noble experiment” known as Prohibition. This was not only a good day for liberty and libations; it also marked the end of a violent era in American history.
The transport and sale of illicit booze became a prolific criminal enterprise backed by well-armed, violent gangs. The result: a homicide rate in the United States that steadily climbed between 1920 and 1933. In addition, the rise of “victimless crimes” — namely, consumption or possession of alcohol — added to the already overburdened judicial system. Furthermore, alcohol consumption — what Prohibition laws sought to minimize — actually increased nearly 70 percent.
To call Prohibition a failure would be an understatement. Repealing Prohibition destroyed the monopoly on alcohol maintained by organized crime. Disempowering the black market produced a noticeable decline in the homicide rate. In fact, homicides continued to diminish each year for eleven years straight.
Fast forward 82 years, and we are in the midst of Prohibition 2.0. This time we call it the “War on Drugs,” and its impact is even more deadly. If concerned citizens want to get serious about reducing gun violence, then they should be encouraged to focus less on policies that are ineffective — “assault weapons” bans, gun buyback programs, and outright confiscation — and focus more on ending our failed, four-decade long, overly-militarized, trillion-dollar battle against narcotics.
Let’s put gun violence into perspective. There is no doubt that gun violence is a problem. Guns are used in nearly three-fourths of all American homicides. What typically brings gun control to the forefront of our political dialogue is the recurring tragedy of a mass shooting. However, mass shootings receive a disproportionate amount of media attention considering how much they actually contribute to our national homicide rate.
According to Mass Shooting Tracker, in 2014, mass shooting incidents resulted in the deaths of 383 people—about 3% of total gun homicides for the year. In comparison, the violence caused by the Drug War overshadows the bloodshed of mass shootings. Though difficult to quantify due to inconsistent reporting, estimates of drug-related homicides reach as high as 50 percent of the total homicides in the United States....
Without legal mechanisms in place, the only option for arbitration in the black market is violence. This violence takes many forms: turf wars between drug suppliers where civilians are also caught in the crossfire; no-knock police raids (sometimes occurring at the wrong house) where suspects are gunned down; drug addicts assaulting others to secure money for their addiction. The multi-faceted nature of the violence makes the task of fully grasping the available data difficult.
The violence of the American Drug War has even spilled over internationally — primarily in Latin America. Between 2007 and 2014, Mexican authorities estimates that 164,000 homicides were the result of cartel violence. For perspective, during the same time period, civilian deaths in Afghanistan and Iraq totaled 103,000 combined....
Despite our backwardness regarding most drug policies, the United States is ahead of most of the international community when it comes to the legalization of cannabis—and we are witnessing some of the positive effects of those efforts. Colorado legalized recreational marijuana with Amendment 64 in 2013, resulting in a “green rush” of population growth. Despite the increase in population, Denver police reports indicate a drop in overall crime, including a 24 percent drop in reported homicides.
Granted, the Colorado experiment with legalized marijuana and its benefits is still new. Plus, it is difficult to demonstrate correlation with such a small sample of data. However, there is a distinct correlation between increased policing of controlled substances and the escalating violence of the black market in those substances. The Independence Institute examined arrest and homicide rates throughout the 20th century and concluded that the greatest contributor to violence is “a violent black market caused by the War on Drugs today, and Prohibition in the 1920’s.”
Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
The question in the title of this post reflects my ambivalent reactions to this lengthy and interesting AP article headlined "Prosecution trend: After fatal OD, dealer charged with death." Here are excerpts:
He knew he was in trouble even before he read the text message: "Did u hear what hapnd 2 ed?" Ed Martin III had been found dead in the bathroom of a convenience store, slumped over on his knees with a needle and a residue-stained spoon in his pocket. He'd mainlined fentanyl, an opioid up to 50 times more powerful than heroin. A pink plastic bag of white powder sat on the sink.
Michael Millette had heard. The overdose death of his friend, just 28, brought tears to his eyes. But he was scared, too. He was Martin's dealer, the man who'd sold him his final fix. In panic, Millette fled to Vermont. But within a day he was back, selling again. He needed money for his own habit.
Now, though, police had a tip that "Mike on Main Street" had been Martin's dealer. Undercover officers began watching his furtive deals on a pedestrian bridge behind his apartment; they secretly photographed his visitors. After he sold drugs to an informant, they swooped in and arrested him.
That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers. He was charged not just with drug dealing, but with causing Martin's death. Maximum penalty: life behind bars.
In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers. They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.
"We need to send that message that you can't sell things that are the functional equivalent of poison," says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years....
Littleton is the essence of New England charm, with a white clapboard inn that has welcomed visitors since they arrived by stagecoach, a 19th-century opera house and even a bronze statue of Pollyanna, the fictional optimist whose author was born here.
But beyond the postcard image is the crime blotter police Capt. Chris Tyler sees every day. In recent years, he says, drugs have been linked to 85 to 90 percent of the major crimes — burglary, theft, armed robbery, forgery, identity fraud.... When heroin first took hold here around 2013, Tyler explains, "there was just a general sense of denial. That was something that happens in big cities where people fall between the cracks. It wasn't going to happen here. But unfortunately it has."
It's not just heroin, but cocaine, fentanyl and a resurgence of crystal methamphetamine. In one seven-month stretch last year, there were three overdose deaths, all connected to fentanyl. In May, a police informant was fatally shot; he'd allegedly cooperated in identifying dealers in the area.
In New Hampshire, drug-related deaths have soared from 163 in 2012 to a projected 478 this year. Fentanyl is increasingly the culprit. From 2011 to last year, deaths caused solely by the synthetic opioid exploded from five to 161, according to the state coroner's office. In that same period, the number of deaths caused by fentanyl combined with other drugs, including heroin, rose from 12 to 122....
Millette, 55, had been linked to another young man's fatal fentanyl overdose, but the witness wasn't credible so police didn't pursue the claims. Millette insists he never was a big-time dealer, just a desperate addict. But Tyler notes he peddled fentanyl, heroin and cocaine to more than 30 customers. His strongest stuff was called "the fire."
Millette says he wasn't sure what he'd sold Martin, only that it was stronger than heroin. He never tested what he sold. "If he's going to do it to a friend, who else will you do it to?" Tyler says. "He was somebody who needed to be stopped."
The prosecution of Michael Millette was part of a new thrust against opioid dealing in New Hampshire. In the spring, the U.S. attorney's office and the state's attorney general formed a task force to pursue dealers who sell opiates that result in fatal overdoses. So far, 56 cases are being investigated, says Benjamin Agati, senior assistant attorney general. In July, his office trained law enforcement throughout the state on how to identify these deaths and work with special prosecutors on investigations.
Though New Hampshire isn't ruling out filing homicide charges if needed — a strategy used in some other states — Agati says his office is pursuing dealers based on a law in which it must show they knowingly provided a drug that resulted in death. The heightened focus on dealers, he says, partly stems from a sense among social workers, pharmacists and rehab experts that "'we can't treat our way out this. We can't do this alone. There has to be some way to stem the supply. That's one reason we're trying the new approach."
But is this the right strategy? The legal community is divided. "I just don't think the ultimate responsibility lies with the person who sells another addict a drug," says Marcie Hornick, who was Millette's public defender. "I find it so counterproductive that they think sending these people to prison for long periods of time is going to have any deterrent effect. It's an easy fix and perhaps it satisfies part of the population. In reality, they come out and don't have the tools or skills to return to society."
But James Vara, who prosecuted the case and now is the governor's special drug adviser, rejects suggestions this is a politically motivated plan without merit. "Say that to a family who lost their child, their son, their brother, their daughter," he says. "Say that to Ed Martin's two children who are without their father as a result of this."
I agree with the statement by the public defender that the "ultimate responsibility" for an overdose death lies with the drug user not the drug dealer. But, especially as the number of these OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead, it is not obvious to me that prosecuting dealers for homicide really is "counterproductive" or that it will not have some beneficial deterrent impact.
One reason I am generally supportive of marijuana reform and often troubled by long mandatory minimum sentencing terms for drug trafficking is because I dislike the nanny-state paternalism I see in decisions to criminalize and severely punish behaviors that do not obviously inflict serious harms upon innocent victims. But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades.
Sunday, August 14, 2016
Realistic (though incomplete) discussion concerning how marijuana reform is not a panacea for mass incarceration
Marc Mauer has this timely and effective new commentary in The Hill headlined "Can Marijuana reform end mass incarceration?". Any regular reader of this blog knows that the only simple and accurate answer to this question is "no," but the commentary provides a fuller accounting of some reasons why I see many possible positive synergies between sentencing reform and marijuana reform movements. Here are excerpts:
This week’s DEA decision to keep marijuana classified as a Schedule I drug (categorized as having no medical potential and a high potential for abuse) has disappointed advocates for drug policy reform. They contend that marijuana is less dangerous and addictive than drugs like cocaine and heroin, or even alcohol. But many reformers also argue that marijuana reform is the first step in ending mass incarceration. In many respects this appears to be wishful thinking.
There’s no question that the “war on marijuana” is overblown and unproductive. Since the early 1990s the focus of drug arrests nationally has shifted from a prior emphasis on cocaine and heroin to increasing marijuana arrests. By 2014 marijuana accounted for nearly half of the 1.5 million drug arrests nationally. But while this elevated level of marijuana enforcement is counterproductive in many respects, there is little evidence to indicate that it has been a substantial contributor to mass incarceration. Of the 1.5 million people in state or federal prisons, only about 40,000 are incarcerated for a marijuana offense. The vast majority of this group is behind the walls for selling, not using, the drug, often in large quantities. We could debate whether even high-level marijuana sellers should be subject to lengthy incarceration, but they constitute less than 3% of the prison population.
In other respects, though, marijuana law enforcement imposes substantial costs on the justice system. Few marijuana arrests may result in a prison term, but they consume enormous resources through police time making arrests and court appearances, probation and parole revocations, and time spent in local jails following arrest or serving a short sentence. And all of this activity comes with public safety tradeoffs. Time spent by police making marijuana arrests is time not spent responding to domestic violence disputes or guns on the streets.
While it may be misleading to portray the marijuana reform movement as the beginning of the end of mass incarceration, there are ways in which we could transform the national dialogue to make a more direct link. For a start, we should call attention to the parallels between marijuana and the overall drug war. In particular, the drug war has prioritized supply reduction through international interdiction campaigns and a heavy-handed law enforcement response. This approach has had little impact on either drug availability or price, and has drained resources from more effective allocations to prevention and treatment programming.
The racial disparities of marijuana law enforcement are emblematic of the drug war as well, with African Americans more than three times as likely to be arrested for a marijuana offense as whites, despite similar rates of use. Such outcomes bring to mind the vast disparities in crack cocaine arrests, as well as the use of “stop and frisk” policing tactics often premised on drug law enforcement, and exacting a substantial toll in communities of color....
There is reason for hope that change may be at hand. National drug policy is shifting toward a greater emphasis on treatment approaches to substance abuse, and thoughtful leaders in law enforcement are serving as models for how to engage communities in collaborative efforts for promoting public safety. The national debate on drug policy is worthwhile on its own, but we should also seek to extend that conversation into the realm of mass incarceration.
For reasons both practical and political, it is appropriate for Mauer and others to be quick to note that marijuana reform will not "end" mass incarceration. At the same time, given that a wealth of other reforms at the state and national level over the last decade has done no more than keep incarceration levels flat, a reduction of 40,000 prisoners in state and federal prisons would still mark a significant achievement in these modern times. Moreover, and as Mauer suggested, national marijuana reform not only could help demonstrate that public-health and regulatory approaches to drug issues are more cost-effective than criminal justice prohibitions, but also could provide a significant source of new public revenue for prevention and treatment programming.
One of many reasons I have become so interested in marijuana reform developments is because I have grown so frustrated in recent years at the seeming inability (or unwillingness) of elite policy-makers (especially in DC) to take bold action to deal with modern mass incarceration. Tellingly, modern marijuana reform in the United States is a ground-up movement that has been engineered at the local and state level despite disconcerting and persistent opposition by elite policy-makers (such as the Obama Administration at its DEA). I continue to fear that elite policy-makers will continue to fail to see that the vast marijority of Americans are eager to move dramatically away from blanket federal marijuana prohibition, though I also expect a lot of significant developments in this space once we get through the 2016 election cycle. With nearly 25% of the US population in numerous states that will be voting on marijuana reforms this November (most notably California and Florida), this election year will be the closest possible to a national referendum on marijuana prohibition. If reform wins big with voters in most states this fall, I think elite policy-makers will finally fully appreciate which way these reform winds are now blowing.
In the meantime, here are some recent highlights on related front from my blogging efforts of late over at Marijuana Law, Policy & Reform
August 14, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Saturday, August 13, 2016
"The Drug Court Paradigm"
The title of this post is the title of this notable new article by Jessica Eaglin now available via SSRN. Here is the abstract:
Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.
This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration. Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations. This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens.
This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why. Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration.
I am putting this article on my must-read list because the author is 100% right when noting that "few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts." Indeed, I have been surprised about how little active discourse about drug courts there has been in recent years in academic and policy circles.
August 13, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)
Thursday, August 11, 2016
If you really want to fully understand what DEA has done/what is changing and not changing about federal marijuana law and policy...
you have to check out these two new posts and materials linked therein from Marijuana Law, Policy & Reform for all the nuanced details:
If you do not have the time or inclination to read those posts, the DEA has this press release explaining these basics:
The Drug Enforcement Administration (DEA) announced several marijuana- related actions, including actions regarding scientific research and scheduling of marijuana, as well as principles on the cultivation of industrial hemp under the Agricultural Act of 2014....
DEA has denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In response to the petitions, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (HHS), which was conducted by the U.S. Food and Drug Administration (FDA) in consultation with the National Institute on Drug Abuse (NIDA). Based on the legal standards in the CSA, marijuana remains a schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse.
In his letter to the petitioners, DEA Acting Administrator Chuck Rosenberg offered a detailed response outlining the factual and legal basis for the denial of the petitions.....
DEA announced a policy change designed to foster research by expanding the number of DEA- registered marijuana manufacturers. This change should provide researchers with a more varied and robust supply of marijuana. At present, there is only one entity authorized to produce marijuana to supply researchers in the United States: the University of Mississippi, operating under a contract with NIDA. Consistent with the CSA and U.S. treaty obligations, DEA’s new policy will allow additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes.
Tuesday, August 09, 2016
Finding (substantive?) due process violation, federal district judge refuses to apply statutory mandatory minimum made applicable by government stash-house sting
A helpful reader alterted me to a very interesting new federal sentencing opinion authored by Gerald Austin McHugh, Jr. in US v. McLean, No. 13-CR-487 (ED Pa Aug. 8, 2016) (available here). The full 29-page McLean opinion is a must-read for all persons interested in federal drug sentencing and dynamic views on sentencing limits that might be found in the Fifth Amendment's Due Process Clause. The opinion's introduction highlights why this decision is so interesting (and might make for a very interesting case to watch if federal prosecutors appeal to the Third Circuit):
The latitude given to federal authorities in charging drug offenses has been described as creating a “terrifying capacity for escalation of a defendant's sentence.”1 [FN1: United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).] This case exemplifies that reality, as a defendant caught by an undercover “sting” operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents. At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs — 5 kilograms of cocaine — that would trigger such a high mandatory minimum.
In an earlier opinion, I described the historical background of ATF “sting” cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic. United States v. McLean, 85 F. Supp. 3d 825 (E.D. Pa. 2015). Although I denied Defendant’s Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case. I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.
August 9, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Thursday, August 04, 2016
After inquiries by members of Congress, Oregon US Attorney agrees to drop federal marijuana charges against Native American teen
I reported in this post last week about the suprising federal prosecution in Oregon of Devontre Thomas, 19-years-old Native American subject earlier this year to a one-count federal misdemeanor charge for possessing "about a gram" of marijuana. The press coverage of this case prompted members of Congress from Oregon, as reported in this local piece, to inquire about this prosecution:
Three members of Oregon's congressional delegation are demanding U.S. Attorney for Oregon Billy Williams explain why his office is prosecuting a Native American teenager for allegedly possessing a gram of marijuana. In letter [sent August 4, 2016], U.S. Sen. Ron Wyden, Sen. Jeff Merkley and Rep. Earl Blumenauer, all Oregon Democrats, ask Williams to give them a full list of the marijuana crimes his office has pursued since 2014, when Oregon voters legalized recreational cannabis.
"Marijuana possession charges have declined in Oregon over the past few years, and we hope to see that trend continue," the delegation writes. "We hope that your office continues this focus on dangerous criminal activity, rather than pursuing crimes involving a substance legal in Oregon."
Now, and surely not coincidentally, this piece from Marijuanapolitics.com reports in its headline that federal prosecutors are "to Drop Charges Against Oregon Teen Devontre Thomas." Here are the latest details:
Even those that don’t support legalizing cannabis were hard pressed to support the federal government threatening Oregon teen Devontre Thomas with a year long prison term over about a gram of marijuana. Drug War reform advocates and concerned citizens across the nation were frankly appalled of such a harsh sentence facing a nonviolent teenager in a state that had legalized cannabis with over 56% of the vote in 2014.
Thomas’ attorney, Ruben Iniguez worked tirelessly for his client and he left me a message stating that the charges would be dismissed in 60 days so long as Thomas stayed out of trouble and stayed employed and/or in school, conditions he was confident the teen would fulfill. Iniguez thanked advocates for reaching out and offering to help with Thomas’ case.
Wednesday, August 03, 2016
Prez Obama commutes 214 more federal sentences
As reported here by Politico, "President Barack Obama commuted the sentences of 214 people on Wednesday, bringing his total number of commutations to 562." Here is more about this latest encouraging clemency news, with some political context:
The president's biggest batch of commutations comes as Donald Trump touts a "law and order" message. But for advocates of sentencing reform, it's a sign that the administration isn't letting up on the 2014 Justice Department initiative to ease punishments for low-level drug offenders who received long sentences due to mandatory minimums. It includes 67 people who had been facing life sentences.
Obama has granted more commutations than his nine most recent predecessors combined, White House Counsel Neil Eggleston noted in a blog post on Wednesday. However, he added, “Our work is far from finished. I expect the President will continue to grant clemency in a historic and inspiring fashion.”
While criminal justice reform advocates have cheered the intention behind the initiative, they’ve complained that the pace of commutations has failed to meet expectations and that the process appears arbitrary. Eggleston promised to speed things up this spring, noting new resources for the Pardon Attorney, and in April, Deputy Attorney General Sally Yates wrote to a consortium of defense attorneys helping prisoners to submit applications, urging them to get applications in by May....
This latest batch of commutations comes at a politically sensitive time, just two weeks after Trump stressed a “law and order theme” at the Republican National Convention, with warnings of danger in the streets fueled by attacks on police in Dallas and Baton Rouge.... The focus on policing issues has drawn public attention away from the broader criminal justice reform agenda. Though there is bipartisan support for changes that would reduce mass incarceration, and the House is expected to vote on sentencing reform when it returns in September, advocates acknowledge that prospects for full passage before the election look grim.
The chart reprinted above comes from the White House blog posting by Eggleston, which also includes these statements of note:
Today began like any other for 214 federal inmates across the country, but ultimately became a day I am confident they will never forget. This morning, these individuals received a message from the President: your application for clemency has been granted.
This news likely carries special weight to the 67 individuals serving life sentences – almost all for nonviolent drug crimes – who, up until today, could only imagine what it might be like to once again attend a loved one’s birthday party, walk their child to school, or simply go to the grocery store. All of the individuals receiving commutation today, incarcerated under outdated and unduly harsh sentencing laws, embody the President’s belief that “America is a nation of second chances.”...
To date, President Obama has granted 562 commutations: more commutations than the previous nine presidents combined and more commutations than any individual president in nearly a century. Of those, 197 individuals were serving life sentences. And, today’s 214 grants of commutation also represent the most grants in a single day since at least 1900.....
In each of these cases, the President examines the application on its individual merits. As a result, the relief afforded is tailored specifically to each applicant’s case. While some commutation recipients will begin to process out of federal custody immediately, others will serve more time.
For some, the President believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the President has conditioned those commutations on an applicant’s seeking that treatment. For others, the President has commuted their sentences to a significantly reduced term so they are consistent with present-day sentencing policies. While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services. Underlying all the President’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance.
The individual nature of the clemency process underscores both its incredible power to change a person’s life, but also its inherent shortcoming as a tool for broader sentencing reform. That is why action from Congress is so important. While we continue to work to act on as many clemency applications as possible, only legislation can bring about lasting change to the federal system. It is critical that both the House and the Senate continue to work on a bipartisan basis to get a criminal justice reform bill to the President's desk.
Thursday, July 28, 2016
How much is federal prosecution of Native American teen for a marijuana offense in Oregon going to cost taxpayers?
The question in the title of this post is my effort to focus a bit more on the fiscal realities surrounding an interesting federal misdemeanor marijuana prosecution discussed in this lengthy local article from Oregon. The article is headlined "Devontre Thomas is 19. He Could Face a Year in Prison. For a Gram of Marijuana. How could this happen in Oregon?". The details here are so interesting for so many reasons, including a recent decision by the defendant not to agree to a plea to what seems to be federal charges less serious than might have been alleged. Here are some details:
Devontre Thomas is 19 years old. In a few weeks, he goes on trial in federal court in Portland. If he loses, he could go to prison for a year. For possessing an amount of cannabis that would fill one joint....
On April 7, 2016, the U.S. attorney for Oregon filed a one-count federal misdemeanor charge against Thomas for possessing "about a gram" of marijuana, according to his public defender, Ruben Iniguez. That's barely enough cannabis to dust the bottom of a Ziploc.
"I've never seen a case like this in my entire time practicing in federal court," says Bear Wilner-Nugent, a Portland criminal defense lawyer for 12 years. "It's outlandish." It's the first time in at least three years that the feds are prosecuting a weed crime in Oregon.
Since then, Oregon voters legalized recreational marijuana. Anyone over 21 can walk into a store and buy up to a quarter ounce — 7 grams — of cannabis. In the first five months of recreational sales, the state collected $14.9 million in marijuana sales taxes. But weed isn't equally legal everywhere in Oregon.
Thomas is accused of screwing up like any other teenager. But his alleged mistake occurred at Chemawa Indian School, a boarding school in the state capital, Salem, operated by the Bureau of Indian Education, an arm of the federal government. Observers say Thomas' prosecution, first reported by KGW-TV, is a poster case for how the nation's drug laws are still stacked against minorities — especially Native Americans. "There's absolutely racial disparity in how these cases are charged," says Amy Margolis, a lawyer at Emerge Law Group, a Portland firm that specializes in cannabis cases. "[Thomas] had the bad luck of being where and who he was."...
The prosecution of Thomas raises questions about the priorities of U.S. Attorney for Oregon Billy Williams, the state's chief federal prosecutor. Among them: Why are federal prosecutors, who claim that Oregon is a den of heroin, meth and opioid trafficking, spending time and resources to go after a teenager for such a small amount of pot? After two weeks of declining requests for comment, Williams finally issued this statement to WW: "We look forward to addressing the facts of the case in an appropriate manner and, most importantly, within the judicial process."
But members of Oregon's congressional delegation say it's alarming that Williams would prosecute the case at all. "I think it's deplorable," says U.S. Rep. Earl Blumenauer (D-Ore.). "What are we doing? Where are our priorities? A kid? Turning his life upside down? They don't have anything better to do to protect young people or Oregonians? It's incomprehensible to me."
As bizarre as Thomas' pot case is in weed-happy Oregon, the place where his alleged offense occurred is just as much of an anachronism. Chemawa, a Native American boarding school, was founded in 1880 and is the longest continually operating boarding school for Native American youth....
Thomas arrived at Chemawa from Madras High School, where he spent his first two years before transferring. He is a member of the Warm Springs tribe, and grew up with his parents and grandparents on the tribe's reservation 105 miles southeast of Portland.... A parent of a fellow Chemawa student described the Thomases as "a good family." His friends say his childhood was that of a normal, loved boy: spending the night at friends' houses, playing basketball on the Madras High junior varsity team....
Rayvaughn Skidmore, 20, also attended Chemawa with Thomas.... Skidmore says Thomas "would always help out his peers and be a leader—showing them what's the right things to do." Skidmore says Chemawa staff members would sometimes drive kids into town to go shopping at Keizer Station Shopping Center or Lancaster Mall in Salem, and he thinks that's when some students would meet up with marijuana connections and bring the substance back to campus.
But when kids on campus were caught with marijuana in their possession, "they'd get sent home." Skidmore says those infractions never resulted in legal charges, even though he knew plenty of classmates who regularly smoked weed. "These other students who are highly abusing any type of marijuana — I don't see why those guys get sent home when they should be prosecuted," he says....
Thomas was never technically arrested for marijuana possession. On March 25, 2015, Iniguez says, a staff member at Chemawa found roughly a gram of marijuana in a student's backpack. That kid said Thomas had sold him the weed. The Marion County Sheriff's Office confirmed that it responded to a call on that date involving Thomas and a juvenile classmate for "delivery" of marijuana.
Nearly a year after a classmate ratted out Thomas, a Chemawa staff member and a police officer drove him to the federal courthouse in Portland to appear before a judge. Lawyers interviewed for this story say it's likely that Thomas is feeling outsized consequences because Chemawa Indian School is under federal jurisdiction....
Retired federal drug prosecutor John Deits says Thomas' case is probably being handled as a federal case because "it's the only jurisdiction that can respond to the charge."
"Nobody else has authority," Deits says. "Marion County doesn't have authority because it's exclusive federal authority. And Indian tribes don't have jurisdiction because it didn't happen on their land."...
The resulting prosecution of Thomas shocks national observers. "He's 19. This is going to potentially haunt him the rest of his life," says Alison Holcomb, director of the American Civil Liberties Union's national Campaign for Smart Justice in Seattle. It's also a stark reminder that the War on Drugs isn't over — even in Oregon.
Observers find it bizarre that the feds have continued to pursue Thomas' case. But U.S. Attorney General Loretta Lynch has been vocal about her desire to keep pot illegal. Local responsibility for prosecuting Thomas falls to Williams, the U.S. attorney for Oregon.... "We are committed to just outcomes in every case," he says. "We look forward to exploring whatever the defense ask that we consider before determining what we believe is an appropriate outcome."
Other federal officials are critical of the prosecution. "The federal government hasn't prosecuted a marijuana-possession case in Oregon in five years," says U.S. Sen. Jeff Merkley (D-Ore.). "Situations like this are best left to be handled by the state."
Blumenauer, who as an Oregon congressman has become one of the nation's loudest voices for marijuana legalization, is enraged. "It is such a powerful symbol of a waste of resources and the inequity of the system," says Blumenauer, "because you and I can walk around in Portland, or in states where it is illegal, and find people using it. To single him out, to proceed with this, to ignore real problems that are killing people…" He pauses. "I'm sorry," he finally says. "I'm getting carried away. It's incomprehensible to me. I'm just sorry that Mr. Thomas is caught up in it."
The people surrounding Thomas in the federal courthouse in Portland on July 8 — Assistant U.S. Attorney Jennifer Martin, U.S. District Chief Justice Michael Mosman, three functionaries and a probation officer — expected Thomas to plead guilty to drug possession and enter a six-month diversion program. But a few moments earlier, Thomas' public defender, Iniguez, hustled into the courtroom with Thomas to announce a change of plans.
"He's not going to be pleading guilty today," Iniguez said. Martin, the prosecutor, looked shocked. "We want to go to trial?" she asked, flummoxed. "If we're making a federal case out of it," said Iniguez, sneaking in a smile, "we'll make a federal case out of it."
Holcomb, of the national ACLU, speculates that Thomas' last-minute decision not to plead guilty may show a steadfastness on his part to prove that he's no different from any other Oregon teenager who messed around with pot. "Devontre's response, to me, indicates a genuinely felt sense of unfairness," Holcomb says. "That it is unfair that he's being charged in federal court for this. It's the latest in a string of dramatic examples of how deeply people are feeling about unfairness and inequality…it sounds like that bubbled up for Devontre."...
Thomas is scheduled for trial Sept.13.
Like nearly all federal prosecutions that become media stories, I sense that this press account is revealing only the tip of an iceberg backstory. For starters, though subject formally only to a federal misdemeanor possession charge, the facts described here suggest that the defendant could have (and some might even say should have?) been subject to a federal felony marijuana distrubution charge. In addition, it seems the feds were seemingly eager to resolve the case through a plea that would prevent the defendant from serving any time or having a felony record. But now it seems that the defense may be gearing up for contesting the charges factually or perhaps constitutionally (or perhaps even via jury nullification if other avenues of defense falter).
I probably could go on and on about this case, and it is certainly one I will be keeping an eye on in the coming months. But, as suggested in the title of this post, whatever else one thinks about this case, I cannot help but wonder how many federal taxpayer dollars will end up being spent on this (minor?) matter.
July 28, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)
Thursday, July 21, 2016
Guest posting from Prof Mark Osler with advice to US Sentencing Commission on revising drug sentencing guidelines
Earlier this month, federal sentencing reform guru Mark Osler informed me that he put together some suggestions for the US Sentencing Commission in response to its request for public comment about proposed priorities. In turn, I urged Mark to put together a guest-post for this space to ensure his insights can be seen outside the Beltway. Here is what he sent my way:
Each year, the United States Sentencing Commission goes through a seasonal cycle; it starts and ends in May, when the Commission publishes proposed amendments (closing out one cycle) while setting out proposed priorities and inviting public comments to begin the next cycle. This year the public comment period lasts until July 25. You can get more complete information at www.ussc.gov.
The proposed priorities for this year are strikingly broad and encouraging for reform advocates. They include some specific items, including “consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c),” but also some fascinating broader priorities. The line that really caught my attention was this one: “the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.”
For those fascinated by federal sentencing, could there be a more enticing invitation?
I have submitted my own comment, which Doug has kindly linked here [down below]. It grows out of the response I got to a New York Times op-ed I wrote in 2014, suggesting that the weight of narcotics used in a conspiracy is a lousy proxy for the culpability of any one conspirator, and that it would be much better to instead simply enhance sentences for those individuals who make the most money from a narcotics operation. After that piece ran, I was surprised at the group I heard from the most: sentencing judges. A few pointed out (correctly) that they had proposed this decades ago, while others simply affirmed the problem with weight of narcotics as the central metric for a drug sentence. And, of course, they had depressing stories to share of sentences they had been forced to give out (pre-Booker) to low-level players in large narcotics organizations.
Here is how my comment begins:
Currently, because of the structure and importance of the Drug Quantity Table at Guideline §2D1.1(c), the primary input of sentence computation in narcotics cases is the weight of the drugs at issue, either by an individual or conspiracy. However, weight of narcotics is not a good proxy for culpability because it unfairly punishes the actions of too many low-level traffickers. If a true kingpin imports 150 kilograms of cocaine into the country and pays a trucker $1,000 to haul it, both of them fall under Guideline §2D1.1(c)(2), which provides for a base offense level of 36. While guideline sections §3B1.1 & 1.2 (distinguishing roles in the offense) provide some level of differentiation, that differentiation will likely be at most a swing of six offense levels.
We all know that the one-off trucker is not nearly as culpable as the kingpin, but the guidelines don’t reflect that because weight-driven sentences are mandated by Guideline §2D1.1(c). Sentencing judges have chafed at the resulting failure of proportionality ever since the beginning of the guideline era.
The false proxy of narcotics weight creates problems with proportionality and disparities because it too often obscures actual role and culpability. Moreover, it imposes a complexity to the guidelines that is unnecessary.
After discussing the benefits and challenges of making such a change, I suggest three alternate ways to amend the guidelines and accomplish this goal.
Perhaps you agree with me, maybe you don’t, or it could be that you think there is a much cleaner route to simplicity, proportionality, and the reduction of disparities. I urge you not only to read the rest of my comment, but to submit your own while the window is still open.
Tuesday, July 19, 2016
Has the drug war really "made policing more violent"?
The question in the title of this post is prompted by this new Democracy commentary authored by Jonathan Blanks that carries this full headline: "The War on Drugs Has Made Policing More Violent: What can be done to curb the excessive and, sometimes, predatory policing that has emerged from the Drug War?". Here are excerpts from the piece:
American policing today has become increasingly aggressive and, at times, even predatory. Policies and tactics have evolved to make police contact more confrontational. In so doing, they have increased the chances of violence and fatal uses of force. This has been particularly true of efforts aimed at fighting the Drug War. Police are incentivized to initiate unnecessary contact with pedestrians and motorists, and they do so most often against ethnic and racial minorities. Such over-policing engenders resentment among minority communities and jeopardizes public safety.
Some of the Drug War’s most disturbing images involve police officers in SWAT gear, kicking down doors, ransacking homes and endangering the lives of everyone inside during pre-dawn raids. Officers rummaging through a car for drug contraband while the driver sits helplessly on the sidewalk as onlookers drive by may be less violent, but is just as invasive and degrading. This experience can be humiliating under any circumstance, and any perception of race as playing a role in the stop piles resentment on top of humiliation.
The “pretextual” or “investigatory” stop is a common police tactic to investigate potential criminal activity — particularly drug possession and trafficking — in situations where there is no legal reason to suspect a crime is occurring. There is not a large amount of data on how often these stops produce contraband seizures, but what data there is suggests that the overwhelming majority of people who are stopped are guilty of no crime. Much like the pedestrian stops during the heyday of New York City’s “Stop and Frisk” program, most of the motorists stopped for investigatory purposes are black or Hispanic. Those who are stopped are often pressured to give consent to a search the officer has no legal right to demand.
There is evidence that some police departments, particularly state police and drug task forces in the American interior, target motorists with out-of-state plates in the hopes of finding drug proceeds and other unexplained cash. Cash-driven interdiction is the result of asset forfeiture laws that allow police departments to keep the proceeds of assets seized in connection with suspected crimes. This “policing for profit” puts budgetary concerns above public safety.
Officers are also trained to prepare for the possibility of violence in every encounter. Anti-police attacks such as the recent tragedies in Dallas and Baton Rouge heighten the fear and trepidation some officers feel in the field. While fewer police officers are feloniously killed in the line of duty per year than at almost any time in American history, officers who find themselves in stressful situations may be more likely to resort to the use of force, including deadly force, in order to maintain their sense of control during such encounters.
In short, the laws and tactics employed to fight the Drug War have transformed police officers from those who protect and serve to a force that, too often, actively searches the innocent and seizes for profit. Aggressive and antagonistic policing also increases the likelihood of disagreement, thereby increasing the possibility of escalation and the use of force that could lead to the injury or death of an innocent person. But the effects of aggressive policing extend beyond the outcome of any given police stop.
Although a majority of Americans express a “great deal” or “quite a lot” of confidence in the police, the same is not true across all racial and ethnic lines. Less than one-third of black respondents to a Gallup poll expressed a large amount of confidence in the police. And while a majority of Hispanics still have a lot of confidence in the police, just over 40 percent of other nonwhites do. Research by Charles Epp and others at the University of Kansas shows that support for police declines when individuals and the people they know have negative police experiences, particularly through investigatory stops.
This lack of confidence in the police can endanger communities. As Jill Leovy documented in her book Ghettoside, the poor relationships officers have with black Los Angelenos hinders homicide clearance rates and prosecutions. At the same time, the “broken windows” policing strategy that focuses on heavy enforcement of petty crimes has been shown to have no effect on the felony crime rate, the premise on which the strategy is based. Together, these create a tragic contradiction in which black communities are over-policed for drugs and petty crimes, but under-policed for homicides and other violent crimes.
I would generally agree with the suggestion that the drug war has contributed to the over-policing of many communities, particularly poorer communities, and I also fear that the drug war has contributed to strained relationships between police forces and certain communities. But I am not sure I would assert that the drug war has itself "made policing more violent": rather, based in part on experiences during alcohol Prohibition a century ago, I would be more inclined to assert that efforts to treat drug use and abuse through blanket prohibitions and criminal justice interventions creates the conditions for a society that has less respect for criminal laws and for police efforts to enforce order, and that in turn makes everyone involved in this part of the criminal justice system more prone to look to violence rather than to law as a means for securing order.
Some prior related posts:
- Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
- Is an end to the modern drug war the only real way to prevent future Fergusons?
- Senator Rand Paul links Ferguson tragedy to harms of the modern drug war
- After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?
Sunday, July 17, 2016
Ninth Circuit rejects district court's decision to base sentence on drug amount higher than jury's special verdict
A helpful reader made sure I did not overlook the interesting Ninth Circuit panel decision in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016) (available here), which was handed down on Friday. Here is how the helpful reader helpfully summarized the decison: "Somewhat unusually, the jury returned a special verdict finding the defendant responsible for less than 50 g of meth. The Circuit Court vacated his sentence after the District Court based the guidelines range on 4.5 kg and gave a stat max sentence of 20 years. An interesting variation on using (or not) acquitted conduct at sentencing, I think." And here are a few paragraphs from the decision:
The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because “[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.”....
Some of our sister circuits seem to have held that a jury’s special-verdict finding that the quantity of drugs involved in the crime is less than a particular amount did not preclude the judge from finding a greater quantity for purposes of sentencing. [CITES] But those cases did not directly address the argument raised by Pimentel-Lopez — that the affirmative finding by the jury that the quantity of drugs involved was less than a specific amount precluded a contradictory finding by the district judge during sentencing....
Some of our sister circuits seem to have assumed that the juries’ findings merely acquitted defendants of possessing higher quantities of drugs, and that may have been warranted on the record before them.... Here, by contrast, the record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances.
Sunday, July 03, 2016
"Utah Senator Meets Inmate Who Inspired Sentencing Law Rewrite"
The title of this post is the headline of this recent Roll Call article reporting on a notable meeting between a prominent advocate for federal sentencing reform and a prominent (former) "poster child" defendant representing the need for reform. The article includes a short video, and here are excerpts of a story that seems worth profiling on a weekend for celebrating US freedoms:
Sen. Mike Lee has told the story of Weldon Angelos’ prison term hundreds of times, describing the 55-year sentence over three marijuana sales in 72 hours as “crazy” and “nuts.”
An improbable set of events brought the two men together Wednesday in the Utah Republican's office on Capitol Hill. The recently freed Angelos hugged the lawmaker who made him a living symbol of the push to overhaul the nation’s sentencing laws.
“I’ve been telling his story a lot,” Lee said during the meeting. “A lot of the time I was telling this good story, I would sit there and wonder, actually, I wonder if he’s going to care if I’m using his name this frequently.”
“But your story was very helpful in explaining to people why we need this legislation and why we need to reform the law,” Lee told Angelos, who has two sons, ages 19 and 17, and a daughter, age 13.
Angelos, 36 and the founder of a hip-hop music label, said he met others in prison with unjust sentences. He plans to tell his story himself in Washington in support of the bipartisan bill. The legislation appears unlikely to pass in this election-shortened year, and amid disagreements among Republicans in both chambers.
“It kept me together, and my family,” Angelos said to Lee. “Your support was amazing and I just wanted to come here and thank you personally for supporting me and your commitment to criminal justice reform.” Lee has credited Angelos' case, which has attracted national attention, for sparking his work to change sentencing laws.
The legal action that freed Angelos on May 31 is somewhat mysterious and extraordinary. There is recent action in his court case — but no sign of a judge’s order releasing him. Lee said President Barack Obama set in motion a way to reopen the case and seek his release. It wasn’t a commutation or pardon but “another type of action,” Lee said. The senator, a former assistant U.S. attorney, is among dozens of people who have urged Obama to commute Angelos’ sentence, including former U.S. District Judge Paul Cassell, who sentenced Angelos.
That shows what a lot of extra attention on a case can accomplish, said Molly Gill, government affairs counselor for Families Against Mandatory Minimums, a group that flew Angelos to Washington this week and is working to end the types of sentencing laws that resulted in his sentence. “But it also shows there are a lot a people who don’t have and are never going to have that level of support,” Gill said.
Lee said Angelos’ release does not undercut the need for the legislation, since there are others out there who can’t get relief like Angelos. “We know there’s more to be done,” Lee said. A provision in the bill would prevent prosecutors from stacking mandatory minimum sentences related to certain gun possession crimes together in one case. It would reduce that mandatory minimum sentence from 25 years to 15 years. It would also allow judges to reduce the sentence for prisoners who are in Angelos’ situation.
Angelos was a first-time offender who was arrested in 2002 after Salt Lake City police set up controlled drug deals between Angelos and a confidential informant.... A jury convicted him of 13 charges, including three counts of possession of a gun in furtherance of a drug trafficking crime. Angelos in 2004 received a five-year mandatory minimum sentence for the first charge of possession of a firearm in furtherance of a drug trafficking crime; a consecutive 25-year sentence for the second, and another consecutive 25-year sentence for the third, FAMM said.
After nearly 12 years in federal prison, Angelos was surrounded Wednesday by the dark wood and art in Lee’s office. “It’s just overwhelming,” Angelos said. “I feel like I’m in a dream.”
Prior related post:
- Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence
Saturday, July 02, 2016
"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"
The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN. Here is the abstract:
After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies. This includes couriers and mules who transport drugs for small amounts of money.
Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions. The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers. This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions. Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules. These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.
This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants. An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants. It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability. And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions. Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating. Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.
Wednesday, June 29, 2016
US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"
On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015." This USSC webpage provides this summary of the report's contents and findings:
The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases [and includes these key findings]:
The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.
Drug cases continued to be the most common type of federal case. The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.
Immigration cases were the next most common, accounting for 29.3 percent of the total federal caseload. In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined.
In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.
Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.
Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.
The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.
June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)
Thursday, June 16, 2016
Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive
Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), has this notable new Huffington Post commentary headlined "The Least Congress Can Do on Criminal Justice Reform." Here are extended excerpts:
Five and a half years ago, I wrote an op-ed in this space in which I urged Congress to apply retroactively the recently passed Fair Sentencing Act of 2010 (FSA). The FSA reduced the indefensible disparity between crack and powder cocaine sentences from 100:1 to 18:1. Every member of the U.S. Senate, including Senator Jeff Sessions (R-AL), supported the FSA because they recognized that there was simply no scientific or public safety rationale for the disparity and yet ample evidence of its racially discriminatory effect. Yet five and a half years later, Congress still has not approved FSA retroactivity.
There are approximately 4,900 individuals still serving the crack cocaine sentences Congress repudiated when it passed the FSA. They are the people whose cases we used to illustrate why the law needed to change, yet they did not benefit. After the FSA passed, the U.S. Sentencing Commission fixed all of the non-mandatory minimum crack sentences by lowering its guidelines consistent with the new law. But the Commission only has authority to changes its guidelines, not mandatory minimum punishments set by Congress and found in statutes.
Today, legislation to make the FSA retroactive is included in a broader sentencing reform bill, which was introduced by Senator Chuck Grassley (R-IA) and is pending in the Senate.... [T]he U.S. Sentencing Commission, at FAMM’s urging and with FAMM’s support, has done all it can to reduce drug sentences and make those reductions retroactive for tens of thousands of federal prisoners. Notably, those who received retroactive relief from the Commission have reoffended at a lower rate than those who served their full sentences.
We recognize that bipartisan consensus and compromise are essential to passing criminal justice reform through the Congress. Because of the hard work of key senators and outside advocates from across the ideological spectrum, we believe that Senator Grassley’s bill would receive more than the 60 votes necessary to invoke cloture and would probably receive closer to 70 votes on final passage. But in an election year, especially a presidential election year, consensus is not enough. The bar is much higher. Unanimity, not broad consensus, is required. Without unanimity, any reform bills will require floor time and will be subject to hostile amendments that could significantly weaken them.
Unanimity is lacking today because of a number of factors. A couple of vocal but mistaken members of Congress insist that any drug sentencing reform will endanger the public, an election-year fearmongering tactic that has no basis in fact. There is also strong disagreement about whether to include minimum criminal intent requirements (“mens rea”) in any final reform bill. House Judiciary Chairman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) support broad mens rea protection; the White House and most Democrats strongly oppose it. The congressional calendar presents an equally daunting challenge. We are in June of an election year. The Senate only plans to be in session for roughly 40 days between now and the November election....
For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive. Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice. The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.
Friday, June 10, 2016
Split Seventh Circuit panel debates import and impact of jury finding of drug quantity rejected by the judge at sentencing
A helpful reader altered me to an interesting Seventh Circuit ruling today in US v. Saunders, No. 13-3910 (7th Cir. June 10, 2016) (available here). These passages from the partial dissent authored by Judge Manion provides a reasonable look into why this split panel's sentencing work is blog-worthy:
The jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram. This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount. These findings are irreconcilable. By its finding, the district court overrode the jury’s decision. The Sixth Amendment does not allow this. I dissent from this aspect of the court’s decision, but join in all other aspects....
A straightforward reading of the jury-verdict form does not allow this court to find an “effective acquittal.” The jury does not — in a single sentence, passing judgment on one count — actually convict and effectively acquit. Here, the jury convicted Saunders and Bounds of a capped drug quantity, and its verdict should stand....
In its ruling today, the court affirms the district court’s application of Watts to this case. It should not. Watts stands for the simple principle that a sentencing court may consider conduct underlying an acquitted charge if that underlying conduct is proven by a preponderance of the evidence. Watts, 519 U.S. at 157. Watts is therefore factually and legally distinguishable from this case. Instead of an acquittal, this case features an affirmative jury finding of fact. An acquittal is a legal conclusion, “not a finding of any fact,” and it “can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.” See id. at 155 (internal quotation marks omitted)....
As the Supreme Court observed [in Watts], “That [acquittal] verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.” Id. at 157 (emphasis in original). In contrast, the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated the Sixth Amendment rights of Saunders and Bounds. And if the jury system is to mean anything, this outcome is a problem.