Thursday, December 18, 2014
Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization
As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution." Here is more on the latest fascinating development in the world of marijuana reform law and policy:
At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."
Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.
Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...
He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.
Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.
During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."
Via the Denver Post, the 83-page SCOTUS filing can be found at this link.
Wowsa (and cross-posted at Marijuana Law, Policy and Reform)!
Wednesday, December 17, 2014
President Obama (aka clemency grinch) grants a few holiday pardons and commutations
Following the holiday script he first wrote with a few clemency grants last year the week before Christmas (as reported in this prior post), President Obama this afternoon granted 20 clemencies in the form of 8 commutations and 12 pardons. This AP story provides the basics and some background:
President Barack Obama on Wednesday cut short prison time for eight drug convicts as part of his new initiative to reduce harsh sentences under outdated guidelines, a step that could lead to a vast expansion of presidential clemency in his final two years in office.
The president also is pardoning 12 convicts for a variety of offenses. But the commutations are particularly significant because they are the first issued under new guidelines announced earlier this year designed to cut costs by reducing the nation's bulging prison population and grant leniency to nonviolent drug offenders sentenced to double-digit terms....
The White House said the eight new commutations Obama granted were for prisoners who likely would receive a substantially lower sentence today and would have already served their time. For example, they include Barbara Scrivner, who was sentenced to 30 years in 1995 when she was 27 years old for a minor role in her husband's meth ring. Obama ordered her sentence to expire June 12, while others will expire April 15.
Administration officials say they expect Obama to grant more clemency petitions in his final two years in office under the changed policy he ordered from the Justice Department. The White House said 6,561 people already have applied in the past year, compared to 2,370 the year before. "I think there is an awareness out there that this president is interested in granting clemency on these kinds of matters," White House counsel Neil Eggleston said in an interview.
The clemency policy changes aren't limited to drug offenders, who comprise about half of the roughly 216,000 federal prisoners, but the criteria makes it clear they are the main target. To be eligible, inmates must have already been behind bars for at least 10 years, have a nonviolent history, have no major criminal convictions, have a good behavior record in prison, and be serving a sentence that, if imposed today, would be substantially shorter than what they were given at the time....
In his first term, Obama commuted just one drug sentence and pardoned 39 people, causing prisoner advocates to accuse him of being too stingy with his power. Obama aides said it was because he wasn't receiving more positive recommendations from the Office of the Pardon Attorney so he directed the Justice Department to improve its clemency recommendation process and recruit more applications from convicts.
Deputy Attorney General James Cole, who in April announced the clemency policy changes, said the sentence commutations reflect a "commitment to bring fairness to our criminal justice system."
"While all eight were properly held accountable for their criminal actions, their punishments did not fit their crimes, and sentencing laws and policies have since been updated to ensure more fairness for low-level offenders," he said in a statement....
The White House noted Obama now has commuted 18 sentences, compared to 11 under President George W. Bush and three in the first six years of the Clinton presidency. Clinton eventually commuted 61, most in a controversial action on his last day in office.
The full list of the lucky receipients of this act of presidential grace can be found here via the White House. And this link provide the full text of Deputy AG Cole's statement about these clemency grants. I expect the folks who follow the ins-and-outs of clemency even more closely than I do will have a lot to say in the days ahead about what might be special about the folks on this clemency list.
Though I do not want to criticize the President too much on a day in which he finally saw fit to make some minor use of his constitutional clemency authority, I will still think of him as a clemency grinch until he begins more regularly granting commutations to a whole lot more offenders still stuck serving severe (and now repealed) crack sentences. There are, I believe, thousands of federal prisoners still serving time for crack offenses based on the old 100-1 crack/powder ratio, and there are surely many thousands more low-level drug offenders arguably just as deserving of clemency consideration. President Obama would have to grant eight commutations every single day over the two years remaining in his presidency to even start to make a serious dent in federal prison population.
Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?
As reported in this post yesterday, an astute lawyer in California sought (and, I now know, obtained) a significant postponement of his client's scheduled federal marijuana sentencing based on a provision in H.R. 83, the 1700-page Cromnibus spending bill, which directs the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes. Specifically, Section 538 of the Cromnibus states, in relevant part:
None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
Though this provision (which was officially signed into law by President Obama on Tuesday) is rightly being hailed as historic, what exactly Section 538 of the Cromnibus means formally and functionally for the Department of Justice and federal marijuana prohibition is anything but obvious or clear. For starters, this provision is a funding directive to DOJ, not a formal restriction on DOJ activities, and it is unclear how such a provision is to be administered or enforced. Moreover, this provision plainly does not provide a formal right or even permission for individuals under federal law to be involved in the "use, distribution, possession, or cultivation of medical marijuana." Indeed, given that federal law currently has marijuana listed as a Schedule I drug, the very use of the term "medical marijuana" in this Section 538 of the Cromnibus is somewhat oxymoronic as a new phrase in the federal legal nomenclature.
That all said, the enactment of formal federal law ordering that DOJ not use funds to prevent the implementation of state medical marijuana laws clearly means something significant not only in states that have medical marijuana laws but throughout the nation. In particular, as the question in the title of this post is meant to connote, I think this congressional approval (of sorts) of state medical marijuana laws should have a tangible (and perhaps significant) impact on any and all federal marijuana sentencings scheduled for the weeks and months ahead.
The specific instructions of 18 U.S.C. § 3553(a) tells federal judges that they must consider at sentencing, inter alia, "the nature and circumstances of the offense" as well as the "need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Even before the passage of Section 538 of the Cromnibus, I thought it was appropriate for a judge at a federal marijuana sentencing to consider based on these provisions a defendant's claim that he was in compliance with state medical marijuana laws. But DOJ in the past could respond by reasonably asserting that Congress would not want a federal judge for federal sentencing purposes to inquire into any claims of state-law compliance.
Now that Section 538 of the Cromnibus is official federal law, I believe every federal judge at any future federal marijuana sentencings should feel duty-bound to examine the particulars of a defense claim of compliance with state medical marijuana laws. In light of what Congress enacted, consideration of claimed compliance with state medical marijuana laws seems essential to "promote respect for the law" as well as to stake proper stock of "the nature and circumstances of the offense" and "just punishment for the offense."
Moreover, I think some viable sentencing arguments might now be made based on Section 538 on behalf of some federal marijuana defendants even in the 18 states that have not yet enacted medical marijuana reforms. If a federal defendant can reasonably assert, even in a non-reform state, that he was (mostly? somewhat? a little?) involved in distribution of marijuana for medical purposes, he might point to 3553(a)(6) and claim that sentencing him hard for medical marijuana distribution in a non-reform state would create (unwarranted?) sentencing disparity when compared to sentences likely to be imposed for the same offense in reform-state jurisdictions.
Critically, I am not contending (yet) that Section 538 of the Cromnibus must or even should have a direct and substantial impact on federal marijuana sentencings in reform or non-reform states. But I am contending that, thanks to Section 538 of the Cromnibus, there are now a lot more federal sentencing issues that need to be subject to a lot more thought before federal judges move ahead with the roughly 100 federal marijuana sentencings that take place throughout the US every week.
In sum, to answer my own question in the title of this post, I would say simple YES.
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
- Federal judge wonders if marijuana sentencing should be impacted by state reforms
- Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?
Tuesday, December 16, 2014
Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws
California Attorney Ronald Richards today sent me a copy of a fascinating emergency motion he filed this week that seeks a postponement of his client's scheduled federal marijuana sentencing today. Here are excerpts from the four-page memorandum in support of the motion (which can be downloaded below) which highlights why I find it fascinating:
Rarely in any counsel’s career has he or she had to file an emergency motion. However, in the world of marijuana laws, the landscape keeps changing; this time, on a historic level. On Saturday night, the United States Senate voted to approve H.R. 83. This is a 1696 page spending bill. In the bill, section 538 forbids the use of money by the Department of Justice for interfering with State laws that allow cultivation of marijuana....
In this case, if the Department of Justice is mandated to not spend any money on interfering with lawful marijuana cultivations implementing state law, the raids, the seizures, and the federal prosecution will come to a halt in California. In addition, if the scheduling is attacked by the litigation in the Eastern District and changed, there are just too many signals that the 77 years of marijuana prohibition may be coming to an end. At least, there is not a direct policy mandate from Congress. It is no different than a highway withholding funding to keep speeds under 80 MPH or at 55 MPH during the energy crisis....
If this bill is signed by the President, which all indications are that he will sign it or the government will shut down, it will become law and policy. The Department of Justice could not in either the spirit or the letter of the law allocate any further staff, investigation, or budget to continue to prosecute this case. Furthermore, all future prosecutions of legal California cultivators would cease to exist....
Based upon the historic passage by the House and the Senate of H.R. 83, the defendant requests a 90 day adjournment of his sentence. If the bill becomes law, he will move to withdraw his plea or file a stipulation to that effect with the government. It would be unfair for him to be burdened with a felony conviction and incarceration when in just two weeks, all the current cultivators in this State would enjoy the new found relief provided by the Congressional mandate.
December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
"Survey: Teen marijuana use declines even as states legalize"
The title of this post is the headline of this notable new USA Today article reporting on new data that seems likely to be trumpted by those advocating for continued reform of marijuana laws. Here are the basics:
Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.
"There is a lot of good news in this year's results, bu the problems of teen substance use and abuse are still far from going away," Lloyd Johnston, the study's principal investigator, said.
After five years of increases, marijuana use in the past year by students in all three grades declined slightly, from 26% in 2013 to 24% in 2014. Students in the two lower grades reported that marijuana is less available than it once was, the survey found. Among high school seniors, one in 17, or 5.8%, say they use marijuana almost daily this year, down from 6.5% in 2013.
Synthetic marijuana, chemical concoctions meant to simulate a marijuana high and sold at convenience stores and gas stations, have also fallen out of favor. In 2011, when the survey first asked about the drugs, known as K2 and Spice, 11% of 12th graders said they had used the drugs in the past year. In 2014, that number had dropped to 6%. "Efforts at the federal and state levels to close down the sale of these substances may be having an effect," Johnston said.
Abuse of all prescription drugs, including narcotic painkillers, sedatives and amphetamines, declined from 16% in 2013 to 14% in 2014 among 12th graders, the survey found. Narcotic painkiller use, in decline since 2009, dropped again from 7% in 2013 to 6% in 2014. Heroin use, which has grown among adult populations, remained stable for teens.
Teens considered narcotic pain relievers, such as OxyContin and Vicodin, safer than illicit drugs such as heroin and cocaine, because they are prescribed by doctors, Nora Volkow, director of the National Institute on Drug Abuse, said. "There's a very strong and aggressive campaign about educating the public on the risk of opioid medications as it relates to overdoses and deaths," Volkow said. "That has made teenagers aware that they are not so safe as they thought they were."
Teen use of both alcohol and cigarettes dropped this year to their lowest points since the study began in 1975, the survey found. Teens may be trading conventional cigarettes for e-cigarettes. In 2014, more teens used e-cigarettes than traditional tobacco cigarettes or any other tobacco product, the study found. "E-cigarettes have made rapid inroads into the lives of American adolescents," Richard Miech, a senior investigator of the study, said....
Alcohol use and binge drinking peaked in 1997, when 61% of the students surveyed said they had drunk alcohol in the previous 12 months. In 2014, 41% reported alcohol use in the previous year, a drop from 43% in 2013, the survey found. Since the 1997 peak, "there has been a fairly steady downward march in alcohol use among adolescents," Johnston said....
"Even though the indicators are very good news, at the same time we cannot become complacent," Volkow said. "This is a stage where their brains are most vulnerable. We need to continue our prevention efforts."
Cross-posted at Marijuana Law, Policy & Reform
Notable NPR coverage of the "Human Casualties Of Mandatory Sentencing"
I am pleased and intrigued to see that National Public Radio seems to be starting a deep dive into some of the personal stories surrounding the debate over federal mandatory minimum. This introduction, headlined "From Judges To Inmates, Finding The Human Casualties Of Mandatory Sentencing," sets up the discussion this way:
This year, everyone from Attorney General Eric Holder to Tea Party Republicans in Congress has argued those stiff mandatory minimum prison sentences do more harm than good for thousands of drug offenders. Legislation to cut the tough-on-crime penalties has stalled on Capitol Hill, but it's likely to be reintroduced in 2015. Meanwhile, the White House and the Justice Department have taken the unprecedented step of asking for candidates who might win early release from prison through presidential pardons or commutations in the final years of the Obama presidency. That effort, known as Clemency Project 2014, is moving slowly.
Amid the backdrop of debate inside Washington and across the country, NPR decided to focus on the human toll of these mandatory prison sentences. We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly-released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.
The series' first lengthy piece here is titled "Judge Regrets Harsh Human Toll Of Mandatory Minimum Sentences," has lots of good content and quotes from Judge John Gleeson and Professors Rachel Barkow and Bill Otis.
December 16, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, December 04, 2014
Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable
Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here). Here are excerpts from the start, middle and end of the lengthy opinion:
In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense. The district court sentenced Howard to a term of life imprisonment plus 60 months.... For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....
The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure. Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....
By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....
The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence. It stated the need for individual and general deterrence, incapacitation, and just punishment. There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina. The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment. Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).
Saturday, November 29, 2014
Is Big Pharma already a bigger threat to kids than Big Marijuana would be?
The question in the title of this post is prompted by this interesting new piece up at The Crime Report headlined "The RX Alliance That Drugs Our Kids." Here is how the piece starts:
Olivia Hernandez always trusted the doctors who scribbled out prescription after prescription for the heavy-duty psychiatric drugs that clouded her teenage years in foster care. Now, she feels “betrayed.”
Three of her former doctors are among a chosen group of California foster care prescribers who received gifts and payments for meals, travel, speaking and industry-sponsored research from the world’s biggest pharmaceutical companies.
A three-part investigation by the San Jose Mercury News has found that drugmakers, anxious to expand the market for some of their most profitable products, spent more than $14 million from 2010 to 2013 to woo the California doctors who treat this captive and fragile audience of patients at taxpayers’ expense.
Drugmakers distribute their cash to all manner of doctors, but the investigation found that they paid the state’s foster care prescribers on average more than double what they gave to the typical California physician. The connection raises concerns that Hernandez and many other unsuspecting youth have been caught in the middle of a big-money alliance that could be helping to drive the rampant use of psychiatric medications in the state’s foster care system.
I am sympathetic to those advocates concerned that a legalized marijuana industry will end up being eager to market pot products to young users. But, as this article highlights, Big Pharma not only markets drug products to kids, but it has a huge group of licensed drug dealers (doctors) helping them peddle drug products.
Wednesday, November 26, 2014
Senator Rand Paul links Ferguson tragedy to harms of the modern drug war
Regular readers know I am always interested in Senator Rand Paul's distinctive perspective on criminal justice issues. This new Time op-ed, headlined "The Politicians Are To Blame in Ferguson," has Senator Paul touching on broader themes as he connects recent events in Ferguson with his belief in the need for systemic reforms to the US criminal justice system. Here are excerpts:
We are witnessing a tragedy in Ferguson. This city in Missouri has become a focal point for so much. The President and the late Michael Brown’s family have called for peace. I join their calls for peaceful protest, but also reiterate their call to action — “channel your frustration in ways that will make a positive change.”
In the search for culpability for the tragedy in Ferguson, I mostly blame politicians. Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America. The War on Drugs has created a culture of violence and put police in a nearly impossible situation.
In Ferguson, the precipitating crime was not drugs, but theft. But the War on Drugs has created a tension in some communities that too often results in tragedy. One need only witness the baby in Georgia, who had a concussive grenade explode in her face during a late-night, no-knock drug raid (in which no drugs were found) to understand the feelings of many minorities — the feeling that they are being unfairly targeted.
Three out of four people in jail for drugs are people of color. In the African American community, folks rightly ask why are our sons disproportionately incarcerated, killed, and maimed?
African Americans perceive as true that their kids are more likely to be killed. ProPublica examined 33 years of FBI data on police shootings, accounted for the racial make-up of the country, and determined that: “Young black males in recent years were at a far greater risk of being shot dead by police than their white counterparts — 21 times greater.”
Can some of the disparity be blamed on a higher rate of crime in the black community? Yes, but there is a gnawing feeling that simply being black in a high-crime area increases your risk for a deadly altercation with police.
Does bad behavior account for some of the interactions with law enforcement? Yes, but surely there must be ways that we can work to prevent the violence from escalating....
Reforming criminal justice to make it racially blind is imperative, but that won’t lift up these young men from poverty. In fact, I don’t believe any law will. For too long, we’ve attached some mythic notion to government solutions and yet, 40 years after we began the War on Poverty, poverty still abounds.,,,
This message is not a racial one. The link between poverty, lack of education, and children outside of marriage is staggering and cuts across all racial groups. Statistics uniformly show that waiting to have children in marriage and obtaining an education are an invaluable part of escaping poverty....
I will continue to fight to end the racial disparities in drug sentencing. I will continue to fight lengthy, mandatory sentences that prevent judges from using discretion. I will continue to fight to restore voting rights for non-violent felons who’ve served their sentences. But my hope is that out of tragedy, a preacher or teacher will arise — one who motivates and inspires all of us to discover traits, ambitions, and moral codes that have slowly eroded and left us empty with despair.
I will continue the fight to reform our nation’s criminal justice system, but in the meantime, the call should go out for a charismatic leader, not a politician, to preach a gospel of hope and prosperity. I have said often America is in need of a revival. Part of that is spiritual. Part of that is in civics, in our leaders, in our institutions. We must look at policies, ideas, and attitudes that have failed us and we must demand better.
Monday, November 24, 2014
USSC Chair's discussion of "A Generational Shift for Drug Sentences" now in print
I noticed via the US Sentencing Commission's official website that Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, has now in print this law review article titled “A Generational Shift For Drug Sentences.” The article is based on a like-titled speech given by Judge Saris noted here earlier this year, and here is a snippet from the article's introduction:
It has been a generation since the laws governing federal drug sentences were put into place. Since the 1980s, our society, our attitudes, and our criminal justice system have evolved. The Supreme Court case law, the statutes and United States Sentencing Guidelines (“Guidelines”), and the realities on the ground have changed significantly. With the benefit of experience and new thought, many are considering whether a change — a generational shift — in our approach to federal drug sentences is appropriate....
This article focuses on policies regarding drug offenders and drug penalties as one means to effect change in the federal prison populations and costs. Drug offenders make up about a third of the offenders sentenced federally every year and a majority of the prisoners serving in the federal Bureau of Prisons, so they are in many ways the key to the size and nature of the federal prison population. This article has four parts: Part I explores the history of the current mandatory minimum drug penalties, the Sentencing Commission, and the federal drug sentencing guidelines; Part II examines criminal justice system shifts over the past thirty years; Part III identifies what changes can be made by Congress and elsewhere to address the burgeoning federal prison population; and Part IV explains the Commission’s significant amendments in 2014 to reduce drug guideline sentences.
Wednesday, November 19, 2014
Some recent highlights from Marijuana Law, Policy and Reform
It has been a few weeks since I have done a round up of notable new posts from Marijuana Law, Policy and Reform, so here goes:
Monday, November 17, 2014
The Marshall Project gets AG Holder to talk about his criminal justice reform work
I am pleased to see that The Marshall Project is now running full steam and has now lots of notable new content on its slick website. Though I am concerned that this notable criminal justice media project, like some others, may end up focusing too much attention on the death penalty, it seems clear that The Marshall Project is going to have lots of material that sentencing fans will want to follow regularly.
Most notably today, The Marhsall Project has posted this exclusive interview with outgoing Attorney General Eric Holder. The piece is headlined "Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty," though I consider the discussion about drug sentencing reform to be most interesting. The piece is a must-read, and here is how it gets started:
The Marshall Project: You’ve been pretty outspoken on criminal justice issues across the board – more outspoken than your boss, actually. What would you single out as your proudest accomplishment in the area of the criminal justice system, and what would you single out as your biggest disappointment?
Holder: In January 2013 I told the people in the Justice Department after the re-election that I wanted to focus on reforming the federal criminal justice system. I made an announcement in August of that year in San Francisco, when we rolled out the Smart on Crime initiative. It was a way of breaking some really entrenched thinking and asking prosecutors, investigators, the bureaucracy – to think about how we do our jobs in a different way – to ask the question of whether excessively long prison sentences for nonviolent offenders really served any good purpose, how we used enhancement papers, moving discretion to prosecutors and asking them to make individualized determinations about what they should do in cases, as opposed to have some big policy sent to them from Washington.
And I think that by and large – not without opposition, to be totally honest – the federal system has embraced that vision. And I think that we have started to see the kind of changes that I hoped we would see.
[MP]: And the biggest disappointment?
Holder: I’m proud of the fact that – in 2010, I guess – we reduced that ratio, the crack-powder, from 100-to-1 to about 17- or 18-to-1. I’m still disappointed that, given the lack of a pharmacological distinction between crack and cocaine, the ratio is not 1-to-1. You know, it was the product of a lot of hard work that the president was intimately involved in. But I think he would agree with me that that number should be at 1-to-1.
[MP]: Before the second term is over, could there be a push for a 1-to-1 ratio?
Holder: That is something that I know the president believes in, that I believe in. One of the things that I’d like to see happen before the end of this administration is that there would be a drug court in every district in this country. As I speak to my successor, the 83rd Attorney General, and as I speak to the president, I’m going to push them to make that a goal for this administration, to have a drug court in every district by the end of Barack Obama’s second term.
Friday, November 14, 2014
Over lengthy dissents, en banc Eleventh Circuit shuts 2255 door to claims based on advisory guideline misapplication
The Eleventh Circuit has today provided some special weekend reading for hard-core federal sentencing fans with a special interest in finality issues (which, I realize, might be a small group). Specifically, the en banc ruling together with dissents in Spencer v. US, No. 10-10676 (11th Cir. Nov. 14, 2014) (available here), runs more than 100 pages. More than three-quarters of those pages come from the dissents to a majority opinion (per Judge William Pryor) that begins this way:
This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence. After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.” United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006). Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review. We disagree.
Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines. Spencer’s sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer’s sentence was and remains lawful. We affirm the denial of Spencer’s motion to vacate his sentence.
At the very end of a very long week, I cannot do justice to the majority opinios or the dissents in this space, so I will close by quoting from the start of one of the dissents (per Judge Jordan) to highlight the human story at the center of the legal debate in Spencer:
At the end of the day, what constitutes a fundamental defect resulting in a complete miscarriage of justice comes down to a matter of considered judgment. In my judgment, having an individual serve an additional 81 months in prison due to an erroneous career offender designation under the advisory Sentencing Guidelines constitutes such a miscarriage of justice, and for that reason I respectfully dissent.
Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine. The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months. For those of us familiar with — and sometimes numbed by — the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error. To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.
Mr. Spencer timely and consistently objected to the career offender designation, only to be told he was wrong. As it turns out, he was right. Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. § 2255 to correct the error.
November 14, 2014 in Advisory Sentencing Guidelines, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack
Wednesday, November 12, 2014
Federal judge wonders if marijuana sentencing should be impacted by state reforms
As reported in this Oregonian article, a "federal judge in Portland last week delayed the sentencing of a convicted bulk marijuana runner from Texas, saying he needed to get a better read on the U.S. Department of Justice's position on the drug before imposing a sentence." Here are more details:
U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."
"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.
Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.
"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?
"Should I delay this, in your view, or go ahead today (with sentencing)?" After hearing arguments from the lawyers, Mosman decided to delay Bouasykeo's punishment.
November 12, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, November 06, 2014
"After the Cheering Stopped: Decriminalization and Legalism's Limits"
The title of this post is the title of this notable and timely paper by Wayne Logan which I just saw on SSRN. Here is the abstract:
To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon.
Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.
Wednesday, November 05, 2014
California sentencing reform initiative Prop 47 wins big getting almost 60% support
As repoted in this Huffinton Post piece, "California approved a major shift against mass incarceration on Tuesday in a vote that could lead to the release of thousands of state prisoners." Here are the basics from a piece headlined "California Voters Deal Blow To Prisons, Drug War":
Nonviolent felonies like shoplifting and drug possession will be downgraded to misdemeanors under the ballot measure, Proposition 47. As many as 10,000 people could be eligible for early release from state prisons, and it's expected that courts will annually dispense around 40,000 fewer felony convictions.
The state Legislative Analyst's Office estimates that the new measure will save hundreds of millions of dollars on prisons. That money is to be redirected to education, mental health and addiction services -- a novel approach that reformers hope will serve as a model in the larger push against mass incarceration.
This official webpage with California ballot measure voting results reports that Prop 47 received 58.5% of votes in support. This big margin of victory strikes me as big news that can and should further propel the political narrative that, at least in some places, significant numbers of voters are significantly interested in significant sentencing reform.
Tuesday, November 04, 2014
US District Judge Kopf reports on retroactive implementation of new reduced federal drug guidelines in Nebraska
As noted in this post from last week, the start of November2014 marked the official start for the new reduced federal guidelines for drug offenses put in place by guideline Amendment 782. At his great blog, US District Judge Richard Kopf has this lengthy new post on the practicalities of implementing the Amendment's retroactivity in his district. I recommend the whole post, from which these excerpts are drawn:
I will take a moment to describe the implementation of Amendment 782 in the District of Nebraska. We are a small district with a large criminal case load, especially including drug cases. As of June 30, 2014, on a per-judge basis, we ranked seventh in the nation and first in the Eighth Circuit for criminal cases. Indeed, Amendment 782 may impact over 700 offenders previously sentenced in our court. Behind the scenes, the implementation of Amendment 782 has had a huge impact on us as we try to fully and fairly implement this important retroactive change to the Guidelines.
With 700 offenders potentially eligible for a sentencing reduction, our district decided that every potentially eligible offender would have his or her case individually scrutinized whether or not a motion had been filed and that every such offender would have a lawyer. After conferring with the United States Attorney, the Federal Public Defender and our probation office, we issued general (standing) orders....
Four people are responsible for superintending the implementation of Amendment 782: two very senior United States Probation officers who are experts in the Guidelines; the head of the drug prosecution unit of the US Attorney’s office; and the Federal Public Defender. They have cooperated nicely, and have established internal operating protocols between them. After the Clerk’s office tracked down the whereabouts of each of the 700 or so offenders through the Bureau of Prisons (a huge task), the group of four sensibly decided upon a “triage” plan. Offenders who are eligible for release on the earliest possible date (November 1, 2015), get attention first. Offenders who are eligible later receive attention later.
Ultimately, the Federal Public Defender, or one of his assistants or a Criminal Justice Act panel lawyer, will file a motion for relief when the group of four decide that the time is right. A probation officer will submit and file as a restricted document a worksheet that includes a calculation under Amendment 782 and the Guidelines. That worksheet will also include a report on the offender’s institutional adjustment and the probation officer’s recommendation about whether relief should be granted....
After the motion is filed, and the worksheet is submitted, the prosecutor and defense lawyer will confer and in most cases a stipulation will be reached. Assuming a stipulation is reached, it will be filed. After that, and without a hearing, relief will normally be granted. If no stipulation can be reached, then in my cases a hearing will be held.
It is possible that a judge might tentatively conclude not to follow a stipulation. While I cannot speak for the other judges, in my cases, I will hold a hearing to give the parties an opportunity to be heard. Whether or not the defendant will be present at such a hearing has yet to be determined by me. In the past, if a dispute of fact arose and the offender could be expected to have unique knowledge of the facts, I have not hesitated to give the offender an opportunity to appear and testify. It is probable that I will follow the same approach for Amendment 782 factual disputes where the testimony of the offender is critical to the fair resolution of the matter. However, in the huge majority of cases, this will not be necessary.
In summary, the equitable and effective implementation of Amendment 782 requires a lot of “behind the scenes” work. We are fortunate to have the cooperative, but always zealous, assistance of prosecutors and defense lawyers, aided by a probation office that is second to none.
Will Election 2014 speed up or slow down the marijuana reform movement?
This new Quartz piece, headlined "However the US votes on marijuana today, it’s 2016 that really matters," highlights that the marijuana reform movement will march on even if voters this election cycle reject various reform initiatives now on the ballot:
There are three marijuana ballot initiatives in today’s midterm elections — in Alaska, Oregon and Washington DC — where voters will decide on outright legalization of recreational marijuana. In a fourth ballot, in Florida, voters will vote on a proposed amendment to the state’s constitution, which would legalize medical marijuana. Initiative 71 in the nation’s capital is the only ballot that looks certain to pass. The remaining three are expected to go down to the wire.
While passage of these ballots could potentially signal growing momentum for the pro-marijuana legalization movement nationally, marijuana advocates are looking to the 2016 general elections as a more accurate barometer of where they stand within the American cultural and political mainstream. The reason being is that more younger and minority voters — groups who polls show support marijuana legalization in higher numbers — vote during quadrennial general elections, while the electorate tends to be older and more conservative in the midterms.
At least five US states — Arizona, California, Maine, Massachusetts and Nevada — will hold ballot initiatives in 2016. And the diverse political makeup of those states, from the conservative battleground of Arizona to the liberal hotbed of Massachusetts, means that success at the ballot box would show that legalization spans the political and ideological spectrum, says Mason Tvert, spokesperson for the Marijuana Policy Project. “Whatever happens Tuesday, we don’t see a step backwards for the movement going into 2016,” Tvert tells Quartz. “Public opinion is on our side, it is only going in one direction, and that is toward an end to marijuana prohibition in this country.”
Though it is a near certainty that marijuana reform issues will be an even bigger part of the political conversation in 2016 than in 2014, I expect the final voting results in Alaska, Florida, Oregon and Washington DC will have a huge impact on the tenor and tenacity of those advocate pushing for and resisting reform. If most of the reform initiatives pass in this year, advocates for reform will be able to continue a narrative of legalization's inevitability it will become every harder for serious candidates for state and federal offices to avoid discussing this issue. But if all of these initiatives fail, opponents of reform can and will assert that the voters are already starting to turn away from supporting legalization now that they are seeing what it really means in a few states.
Over at Marijuana Law, Policy & Reform, I have completed this series of posts on the dynamics in play in the three states with big reform initiative on the ballot:
Monday, November 03, 2014
Arguing for releasing all drug prisoners and reparations to "right the drug war’s wrongs"
Lucy Steigerwald has this provocative new Washington Post blog/commentary piece headlined "Sentencing reform and how to right the drug war’s wrongs." Here are excerpts:
On November 1, the U.S. Sentencing Commission’s plan to reform sentencing for certain drug crimes went into effect. The details were hammered out back in April and July, and they could have been challenged by Congress. Thankfully, Congress declined to do so, and now the commission has a chance at helping nearly half of the 100,000 inmates in federal prison come home earlier than they otherwise would have.
For decades, the war on drugs rolled onward, leaving a pulpy mass of casualties in its wake. But since at least 2012, when Colorado and Washington state legalized recreational use of marijuana, there has been some serious strides against this dangerous domestic policy. Generally, however, any progress made on drugs has been confined to changing the legality of substances....
Even the tentative, good-but-not-good-enough Fair Sentencing Act, which reduced the sentencing disparity between crack and cocaine in 2010, was initially not retroactive until the USSC voted to make it so.... The USSC is doing something more substantial still with their new guidelines, which allow for retroactive petitioning for reduced time in prison starting in November 2015. Prisoners may begin petitioning for these reductions now, however. Unfortunately, those sentences cannot fall below the mandatory minimums, which can only be changed by Congress. Ideally, the Justice Safety Valve Act, introduced by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.), which would give judges more flexibility to depart from mandatory minimums, will be eventually signed into law, allowing for some of the damages wrought by these mandatory sentences to be mitigated.
In addition, even though the sentencing reforms help the federal prison population, we are very far from instituting anything as optimistic on a statewide level. Most of the some-400,000 state prisoners in jail on drug-related crimes are out of luck unless they get individual commuting of their sentences.
As the war on drugs loses popularity, the question of what to do about the lives ruined and interrupted is going to come up again and again. One of the more fascinating, though politically unrealistic suggestions for what to do about this mess is one offered by a Green Party candidate for governor of New York: Howie Hawkins suggests releasing all drug prisoners, and putting together a “panel on reconciliation” between them and their communities and governments. They want voting rights restored, school grants restored, help for children of the former cons, and prevention of would-be employers asking about criminal histories. They even suggest full-on reparations for “the communities affected.”
This won’t pass muster, probably not even in the most liberal states. The slow reforms being offered by the USSC, and criminal justice advocates like Sen. Paul might be all we get. But the reparations idea does present a question of what society should do after the madness of a moral panic dims, and the end result turns out to be 2.3 million people in prison or jail. Most people wouldn’t object to a payment to any of the 147 people freed from death row, especially those who turned out to be unequivocally innocent. What happens when we realize that neither possessing nor selling drugs is a real criminal act? Doesn’t that suggest that we have a lot of innocent people in prison who will need a lot of help in restarting their lives?
"Narcotics Prosecutors as Problem Solvers"
The title of this post is the title of this intriguing little new piece by Mark Osler now available via SSRN. Here is the abstract:
When deciding whether and how to pursue narcotics cases, federal prosecutors should focus not on number of convictions or quantity of drugs intercepted, but rather on whether they are solving problems through the cases they choose. He first examines federal prosecutors' extremely broad discretion in selecting narcotics defendants and charges, as well as some of the negative effects of the failure to employ a "problem solving" rubric in the war on drugs to date. He then suggests a number of changes that such a rubric would bring to the way narcotics cases are pursued, including a change in the proxy that prosecutors use for defendant culpability from drug quantity to drug profits.