Wednesday, January 29, 2014
Though Prez Obama ignores sentencing reform in State of the Union, AG Holder talks it up to Senate Judiciary Committee
I was disappointed, but not at all surprised, that during last night's State of the Union address, President Obama showed his distinct unwillingness to be a real leader in the arena of federal sentencing reform. I had heard rumors that some mention of sentencing reform was possible in SOTU, but I surmise that Prez Obama cares too little about this issue to give it even a brief mention in an hour-long speech about his vision and priorities for the nation. (In sharp contrast, as highlighted here, President George W. Bush made some quite progressive criminal justice reform comments in both his 2004 and 2005 State of the Union address.)
But while Prez Obama apparently is disinterested in these matters (or thinks they make for bad politics), his Attorney General seems to remain committed to move forward with needed federal sentencing reforms. Specifically, consider these closing paragraphs in this prepared statement delivered today by AG Eric Holder to the US Senate Committee on the Judiciary:
[O]ur commitment to integrity and equal justice in every case, in every circumstance, and in every community ... is also reflected in the new “Smart on Crime” initiative I announced this past August — to strengthen our federal criminal justice system; to increase our emphasis on proven diversion, rehabilitation, and reentry programs; and to reduce unnecessary collateral consequences for those seeking to rejoin their communities. As part of the “Smart on Crime” approach, I mandated a significant change to the Justice Department’s charging policies to ensure that people accused of certain low-level federal drug crimes will face sentences appropriate to their individual conduct — and that stringent mandatory minimum sentences will be reserved for the most serious criminals. Alongside other important reforms, this change will make our criminal justice system not only fairer, but also more efficient. And it will complement proposals like the bipartisan Smarter Sentencing Act — introduced by Senators Dick Durbin and Mike Lee — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.
I look forward to working with Chairman Leahy, distinguished members of this Committee, and other leaders who have shown a commitment to common-sense sentencing reform – like Senator Rand Paul — to help advance this and other legislation. I thank you all, once again, for your continued support of the Department of Justice. And I would be happy to answer any questions you may have.
A few recent related posts:
- Will Prez Obama mention sentencing reform in the State of the Union address?
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Another notable GOP member of Congress advocating for federal sentencing reform
- Could GOP Senator John Cornyn be the next big advocate for reducing federal prison terms?
- Conservative group ALEC joins the growing calls for sentencing refom
January 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack
Notable New York story about "gentleman heroin dealer" getting out from under LWOP sentence
A helpful reader alerted me to this fascinating little New York Times story of one federal defendant (of too many) sentenced to LWOP for a first-offende drug crime who later became one federal prisoner (of too few) who got a lower prison term at a resentencing after spending nearly a quarter-century in federal prison. The story demands a full read, but here is a snippet:
Time for a question to Myles Coker about the origins of a life that he had kept secret from the people closest to him. How had he gotten started in the heroin trade? Mr. Coker did not blink. “It was back in the ’80s,” he said, when he worked for an illegal gambling business.
His son Clifton pulled his chair closer. “I’ve never heard this part of the story,” he said. Neither had others at lunch at the National Arts Club on Friday. Among them were Mr. Coker’s lawyer, Harlan Protass, who got him out of prison at age 63, well ahead of the life term he was supposed to serve, and Roland Riopelle, the former federal prosecutor who had put Mr. Coker behind bars.
A star wide receiver in college who is still in excellent shape, Mr. Coker did not use drugs himself. He ran an entirely legitimate limousine business that had among its clients “The Cosby Show.” The parents of children he coached in Little League held parties to thank him for his devotion. His wife was a teacher, principal and textbook author; their two sons, Clifton and Kelvin, went through private elementary schools in Manhattan, Poly Prep high school in Brooklyn and top colleges, and have enjoyed professional success.
Unknown to all, Mr. Coker was a gentleman heroin dealer. His work for an illegal gambling operation — he took bets on sporting events over phones in safe houses in the Bronx — brought him to the home of Anthony Damiani, an overseer of the operation, who lived in Morris Park. “Not at the beginning, but after a few years, all this cash was coming in,” Mr. Coker said. “Once they got into heroin, I was seeing the currency machine for counting cash. They had me carrying it in sacks.”
He was invited to set up distribution in Harlem, and after a few years, took up the offer. “Greed just took me,” Mr. Coker said. He eventually ran about five or six spots, a business that he said brought him about $25,000 in cash profits per month.... Records kept by one particularly diligent member of the organization showed that Mr. Coker had been supplied with 691,430 glassine bags in 26 months. In time, 50 people, including Mr. Coker, were arrested. He was sentenced, under federal laws that are no longer in effect, to life without parole.
“He was just gone; we didn’t know where he was,” said Clifton Coker, who was then 10. By phone, the boys’ father told them he was away training a boxer. The boys’ mother, Deborah Coker, consulted a psychologist, who said the children should be told by their father of his whereabouts, but he did not disclose the details of his offense or that the federal authorities had written, “It does not appear that he will be discharged from said custodial sentence prior to his demise.”
Not until Kelvin Coker was at Amherst College and able to work the Internet did the brothers realize that their father was not supposed to ever come back.... The sons went on a campaign to find a way out of prison for their father, and hired Mr. Protass. With hearty letters from prison guards who praised him for his sterling record as a peacekeeper, and with legal filings by Mr. Protass that Judge Loretta A. Preska of United States District Court said were “some of the best papers I’ve seen,” Mr. Coker was resentenced in August to time served — just under 23 years....
When Mr. Riopelle heard that Mr. Coker had been released, he invited him to lunch. “I want to see people like him succeed,” Mr. Riopelle said.
Monday, January 27, 2014
SCOTUS unanimously rules in Burrage that causation requirement precludes drug defendant facing mandatory minimum for abuser's death
In its one criminal justice ruling this morning, the Supreme Court today via a unanimous vote in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected an effort by federal prosecutors to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant. Here is the closing paragraph of the opinion of the Court authored by Justice Scalia:
We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-forcause of the death or injury. The Eighth Circuit affirmed Burrage’s conviction based on a markedly different understanding of the statute, see 687 F. 3d, at 1020–1024, and the Government concedes that there is no “evidence that Banka would have lived but for his heroin use,” Brief for United States 33. Burrage’s conviction with respect to count 2 of the superseding indictment is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
January 27, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Sunday, January 26, 2014
GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives
Two years ago, just when Mitt Romney was finally sewing up the Republican nomination and could pivot his campaign toward wooing general election voters, I wrote this post suggesting it might be shrewd for Romney to consider trying to appeal to independents, young voters and minorities by talking up sentencing and drug war reforms. I followed up these ideas via this April 2012 Daily Beast commentary suggesting Romney should consider embracing "what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."
Two years later, it is (too) easy for me to assert that Mitt Romney might be preparing his own State of the Union address now had he taken my advice on this front. Nevertheless, I am hardly the only one who came to see that Mitt missed the boat with younger and minority voters. Romney himself commented that his campaign "fell short ... in being able to speak openly and effectively to minority populations," and this post-election post-mortem done by RNC Chair Reince Priebus highlighted that "young voters are increasingly rolling their eyes at what the [GOP] represents, and many minorities wrongly think that Republicans do not like them or want them in the country."
These 2012 issues all came to mind again when I read this interesting new post by Alex Kriet over at Marijuana Law, Policy and Reform. The post is titled "More politicians backing marijuana reform," and it notes that "the past few days have seen a number of prominent Republican politicians express support for easing marijuana laws." Alex provides excerpts from recent comments by Governors Christie, Jindal and Perry and noted that they are "three Republicans rumored to be considering 2016 presidential bids [who are all] expressing support for easing drug laws."
Of course, even among leading conservative voices, these three prominent GOP Governors are coming a bit late to the sentencing and drug war reform table. The Right on Crime movement has now been going strong for more than three years, with conservative stalwarts like Jeb Bush, Newt Gingrich, and Grover Norquist signing on to this statement of principles that "we must also be tough on criminal justice spending ... [to reconsider our] reliance on prisons ... [which can] have the unintended consequence of hardening nonviolent, low-risk offenders — making them a greater risk to the public than when they entered." And, two of the most prominent elected Tea Partiers, Senators Mike Lee and Rand Paul, have been co-sponsors and prominent supports of bill to reform some of the harshest and most rigid aspects of the federal sentencing system.
Regular readers know I have long asserted that anyone truly and deeply committed to oft-stressed conservative principles of constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise should be troubled by the size and power of modern American criminal justice systems, especially at the federal level. But Alex's astute observation that many GOP leaders considered viable national candidates for 2016 are now talking up sentencing and drug war reforms suggests that Republican leaders are now getting what Mitt missed — GOP talk of serious criminal justice reform (especially at the federal level) may now be very smart politics as well as being in keeping with prominent conservative principles.
Some recent and older related posts:
- Will Prez Obama mention sentencing reform in the State of the Union address?
- Terrific (though incomplete) analysis of the state and future of modern pot politics
- "Conservatives latch onto prison reform"
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Another notable GOP member of Congress advocating for federal sentencing reform
- Could GOP Senator John Cornyn be the next big advocate for reducing federal prison terms?
- Conservative group ALEC joins the growing calls for sentencing refom
January 26, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack
Texas jury suggests it's much better for NFL players to kill pals than sell them pot and coke
I was pleased and intrigued by all the diverse comments that were part of reader reactions to my rant here last week about Justin Beiber and what I consider the harmful and dangerous leniency too often shown to serious DUI offenders. To summarize the gist of my prior rant(s), I am troubled many serious DUI offenses are punished so relatively leniently, and I fear that rich and famous DUI offenders get even extra leniency because they generally can afford the best lawyers and are generally viewed more sympathetically than most other defendants because of their fame. It was very helpful to see different folks express different reactions to these sentiments.
Intriguingly, the day after the Bieber arrest news broke, a Texas jury handed down its punishment for another rich and famous person involved in a serious DUI offense. Via this AP story, here are the details:
Former Dallas Cowboys player Josh Brent avoided prison Friday and instead was sentenced to 180 days in jail and 10 years of probation for a drunken car crash that killed his friend and teammate, Jerry Brown.
Brent was convicted Wednesday of intoxication manslaughter for the December 2012 crash on a suburban Dallas highway that killed Brown, who was a passenger in Brent's car. Brent could have been sentenced to up to 20 years in prison. He was also fined $10,000....
One of his attorneys, Kevin Brooks, described the former defensive tackle as "somber."... Brooks said, "It's kind of what we've been fighting for from Day 1. I'm happy for Josh. Josh is still sad and grieving and that's something he's going to carry with him the rest of his life."
Brown's mother, Stacey Jackson, wasn't in the courtroom when the verdict was read. She publicly forgave Brent, and said during Thursday's sentencing proceedings: "He's still responsible, but you can't go on in life holding a grudge. We all make mistakes."
Jackson was the last witness the jury heard, and lead prosecutor Heath Harris said her testimony probably helped Brent get probation. "The victim's family will always have a bearing on the punishment phase," Harris said. "Should it make a difference? What if she had been wanting the maximum? Would they have given the maximum? That's why we let the jury decide."
Prosecutors were pushing for prison time for Brent, whose trial came weeks after a teenage boy in neighboring Tarrant County received no prison time for an intoxication manslaughter conviction in a drunken crash that killed four people. In that case, a defense expert argued that the teen deserved leniency because his parents had coddled him into a sense of irresponsibility -- a condition the expert termed "affluenza."
The group Mothers Against Drunk Driving, whose headquarters isn't far from the spot where Brent crashed, said in a statement that it was "shocked and appalled" by the athlete's sentence. "This punishment sends the message that it's OK to drink and drive -- but it's absolutely not," MADD said....
Blood tests pegged Brent's blood alcohol content at 0.18 percent, which is more than twice the state's legal limit to drive of 0.08 percent. Prosecutors told jurors that the burly, 320-pound lineman had as many as 17 drinks on the night of the crash....
Judge Robert Burns scolded Brent after reading the verdict, saying his actions "bring shame to the city of Dallas." The judge also mentioned Brent's 2009 drunken-driving conviction in Illinois, which the prosecution revisited in making its case for prison time.
"The judge obviously has a right to express his opinion," said George Milner, one of Brent's attorneys. "I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person."
Regular readers will not be at all surprised that I think a sentence of probation for 10 years and a $10K fine is far too lenient punishment for Brent's repeat and now deadly penchant for drinking and driving. (My understanding from this local report is that the Texas jury imposed only the probation term and fine, but that the trial judge added the 180 days in local jail.) And those who hope Brent will finally shape up after killing his friend might be interested in this NFL report from last year noting he failed two drug tests while on bail awaiting his trial.
Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence. As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent. I highlight these realities because far too many persons often believe or claim in far too many settings that giving voice to victims' interests and/or allowing jury sentencing will result in (too) harsh sentencing outcomes. In this notable case, giving voice to victims' interests and allowing jury sentencing result in a (too) lenient sentencing outcome.
Finally, as the title of this post indicates, what probably troubles me most about this outcome is what it says about the values and commitments of our modern criminal justice systems in the wake of last high-profile sentencing of an NFL player. As detailed in this AP article from two months ago, former NFL receiver Sam Hurd was sentenced to 15 years in federal prison for being involved in "a lot of agreements to buy and sell marijuana and cocaine." (Notably, the federal sentencing guidelines actually recommended that Hurd get a 30 year sentence, but the federal judge varied down to 15 years.)
In other words, for his first offense trying to make money by selling his pals pot and coke, Sam Hurd got a federal prison sentence 30 times longer than the jail term to be served Josh Brent for killing his pal during his second (known) offense of drinking and driving. Like the folks at MADD, I worry that these disparate punishment realities "send the message that it's OK to drink and drive" and kill your pal, just make extra sure you do not try to seel them some pot and coke or you might get in really big trouble. (And do not get me started on the additional messaging from another famous NFL player, Plaxico Burress, having to cut a plea deal to get a state prison sentence only four times longer than what Brent will serve simply for carrying a gun the wrong way and shooting himself!)
Some related posts on drunk driving leniency and NFL player sentencings:
- Why the #@$%! is Justin Beiber's sentencing exposure so low for underage DUI?
- Another young life cut short by famous drunk driver ... thanks in part to undue sentencing leniency
- How will Texas sentencing jury exercise its broad discretion after NFL player's intoxication manslaughter conviction
- Effective commentary complaining about undue leniency for drunk drivers
- Shouldn't we be much, much tougher with drunk drivers?
- Another high-profile example of undue leniency for a repeat drunk driver
- Former NFL player now a high-profile felon facing (severe?) federal sentencing realities
- Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver (guilty of DUI)
- Plaxico Burress cuts a plea deal requiring two-year prison term for his gun possession
Will Prez Obama mention sentencing reform in the State of the Union address?
Presidents traditionally use the annual State of the Union address to outline a planned legislative agenda and to articulate a perspective on national priorities. Consequently, in light of all the recent talk from Attorney General Holder and members of Congress about the need for federal sentencing reform, I will be extremely interested to see what Prez Obama might say (or not say) about sentencing reform when speaking to Congress this Tuesday.
This notable new commentary by Juliet Sorensen at The Atlantic, which is headlined "Why Obama Should Back Drug-Sentencing Reform in the State of the Union," highlights that I am not the only one now thinking about POTUS, SOTU and sentencing. Here are excerpts:
In the last week of 1963, my father, Ted Sorensen, met with President Lyndon Johnson late into the night at his Texas ranch to decide what provisions of President John F. Kennedy’s unfinished agenda to include in the upcoming State of the Union address. Last on the list was a provision for expanded federal jurisdiction over illegal drugs, which provided not only for federal criminal-law enforcement but also for expanded rehabilitation and treatment programs.
As my father recounted in his memoir, Johnson angrily brushed aside the suggestion. “Drugs? I don’t want to have anything to do with them. Just lock them up and throw away the key!” The meeting ended, and my father deleted that portion of the speech, which famously announced the War on Poverty — but kept the drug provision in Johnson’s legislative program. This led to controlled-substance and drug-addiction reform that passed with bipartisan support in Congress. Despite Johnson’s dismissal of my father’s proposal of treatment and rehabilitation, he extolled those ideas when he signed the Narcotic Addict Rehabilitation Act into law in November 1966, describing it as a “pioneering measure” that recognizes that “treating addicts as criminals neither curtails addiction nor prevents crime.”
President Obama now has a golden opportunity in his own State of the Union to confront the U.S. government’s continued struggle to effectively legislate drugs. In a January 8 statement, Obama endorsed the very same priorities articulated in LBJ’s War on Poverty and catalogued exactly 50 years ago in Johnson’s own State of the Union address. This indicates that he will also focus on income inequality — 21st century lingo for entrenched poverty — in his speech on January 28. While a renewed commitment to tackling persistent poverty is laudable, Obama should also seize the moment to further another, related legislative aim of the Kennedy and Johnson Administrations: reduced sentencing for drug-law violators who are nonviolent offenders....
Members of the bench and bar have come to recognize that mandatory minimums don’t always keep society safe or effectively punish every defendant. A bill in the Senate, co-sponsored by Senators Dick Durbin, a Democrat, and Mike Lee, a Republican, would capitalize on shifting opinions in Congress and the general public. The Smarter Sentencing Act (SSA) would reduce the mandatory-minimum penalties for many drug offenses and give federal judges more leeway to sentence nonviolent offenders with limited criminal histories below the high mandatory-minimum sentences. It would also reduce disparities between crack- and powder-cocaine offenders by making the Fair Sentencing Act of 2010, which reduced the gap between the amount of crack and powder cocaine needed to trigger certain penalties, retroactive. Support for the SSA from law enforcement, victims’ organizations, prosecutors, and judges has poured in, including a letter signed by more than 100 former judges and prosecutors, including me....
The Obama Administration has indicated it supports mandatory-minimum-sentencing reform. Tellingly, the president last month commuted the sentences of eight nonviolent drug offenders who would most likely have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules, and charging policies. Attorney General Eric Holder stated last August that legislation such as the SSA will “ultimately save our country billions of dollars while keeping us safe.” In an interview published in this week’s issue of The New Yorker, Obama acknowledged the disparate impact of drug laws on minorities, noting that “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support” — in their families, in their schools, and in their communities — to avoid lengthy prison sentences for marijuana crimes, even as he acknowledged the “profound” social costs of drug trafficking.
A declaration of support for the SSA in his State of the Union Address — broadcast live and heard not only by Congress but approximately 50 million people around the world — would go far to create momentum and support for the bill and its goal of curbing unnecessarily harsh sentencing. In so doing, the president would put America back on the road paved by Kennedy and Johnson. My father, and the presidents he served, would be pleased.
Friday, January 17, 2014
"Political odd couples push sentencing reform" ... and have little to show so far
The title of this post is drawn from the headline of this Washington Post entry, with a dash of my cynicism added and explained after an excerpt:
At a time when partisans in Congress don't agree on anything, they have found one area where they can: Reforming America's sprawling and costly prison system. Nearly 30 years after creating mandatory sentences for drug offenses, an unlikely band of lawmakers is moving forward with their plans to fix what they say is a broken criminal justice system....
The Senate Judiciary Committee is working through several reform bills crafted by lawmakers from the liberal and conservative wings of the two parties to put together a plan, which, they say, will help alleviate the financial and humanitarian costs of the spending guidelines.
So who are these unlikely co-sponsors? Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) have joined forces and put together a bill that would give judges flexibility when they hand down sentences for nonviolent drug offenders. A House counterpart to the Durbin- Lee bill is co-sponsored by the unlikely duo of Reps. Raul Labrador (R-Idaho) and Bobby Scott (D-Va.). Another bill, sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.) would expand that judicial leeway to some non-drug related crimes.
"I think money is driving this debate to some extent but also honesty," Durbin said in an interview. "After 30 years we ought to take a look at these laws. These aren't the 10 Commandments."
Overcrowded prisons have been increasingly a strain on federal budgets, costing an estimated $60 billion per year. Since the mandatory minimum law was implemented in 1986, the prison population has exploded -- from around 58,000 in the late 1980s to more than 217,000 in 2012, according to the Department of Justice and the Bureau of Prisons.
“People are starting to see the unfairness, people who have been kept in jail, sometimes 10, 20, 30, even 50 years for a non-violent crime,” Paul said in an interview. “I personally think if you made a mistake, a youthful mistake, that when you serve your time, and the time should be a reasonable time, that you should be able to get back into society.”
The timing of a reform bill is still uncertain, but Leahy, who chairs the Senate Judiciary Committee, indicated in a statement that a mark-up was in the near future. "Doing nothing means cutting funding from law enforcement, victim services and crime prevention efforts -- doing nothing makes us less safe," he said. "We will soon be marking up legislation to address this important issue." Labrador said House Judiciary Chairman Bob Goodlatte (R-Va.) has agreed to have a hearing in the House on the issue this year....
It's not the first time this issue has brought the two sides together. The Fair Sentencing Act of 2010, that eliminated the sentencing disparity between crack and powder cocaine, was put together by Durbin and Alabama Republican Jeff Sessions as they worked out next to each other in the Senate gym. The bill eventually passed by unanimous consent.
I have grown more cynical and pessimistic about statutory sentencing reforms coming from Congress now that it has been almost a full year since Senators Leahy and Paul started pushing for mandatory minimum reform. It would seem all political, social and economic forces are in line for major statutory sentencing reform, and yet we continue to hear lots of talk about reform and little tangible action in Congress. Especially given that it took decades for crack reform talk to become the FSA, and given that the FSA was itself a pretty tepid and incomplete reform, I hope all this talk from Congress is not generating false optimism about significant statutory sentencing reforms coming from Congress.
That all said, I am much more optimistic that other federal sentencing players, especially the US Sentencing Commission and lower court judges, can and will be inspired by all the reform talk in Congress to take tangible action in courtrooms. Indeed, I think the very important new proposal to cut federal drug sentences across the board (basics here, commentary here) only came to happen because that politically cautious body sensed members of Congress would not be likely to vocally resist a reduction of drug sentencing guidelines.
Wednesday, January 15, 2014
NY Times debates "Should Drug Enforcement Be Left to the States?"
Vermont and a number of states have responded to increased drug use by emphasizing treatment and rehabilitation. Washington and Colorado have legalized recreational use of marijuana, and the federal government has taken a hands-off approach there. And the Justice Department has pledged a less severe approach to drug cases over all.
But with more states taking different approaches to drugs, should the federal government even prosecute local drug cases?
Here are the contribututions, with links via the commentary titles
The Feds Have Failed; Help the States Instead, Glenn E. Martin, JustLeadershipUSA
A Major Problem Needs a National Response, John P. Walters, Former drug czar
The Feds’ Role After Legalization, Beau Kilmer, co-author, "Marijuana Legalization: What Everyone Needs to Know"
Creating Confusion in the Workplace, Kabrina Krebel Chang, professor of business law and ethics
We Need More Than a Jurisdiction Shift, Vanita Gupta, A.C.L.U.
Federal Focus Should Be on Big Cases, Alex Kreit, author, "Controlled Substances: Crime, Regulation, and Policy"
Tuesday, January 14, 2014
Clemency's consequences: "Clarence Aaron, almost free"
The title of this post is drawn from the headline of this notable new commentary by Debra Saunders, who is described as the "San Francisco Chronicle's token conservative columnist." Because the piece is so moving (and pretty short), I am reprinting a lot of it:
Last month, President Obama did a good deed commuted the sentence of eight crack cocaine offenders, including Clarence Aaron, a first time nonviolent drug offender sentenced to life without parole. Readers may have thought Aaron would be home by Christmas; instead the Dec. 18 order prompted the Bureau of Prisons to move Aaron to a minimum-security camp [and then to a halfway house].... He is set for supervised release on April 17.
I had been a bit worried about what would happen to Clarence in prison as he awaited release. At first, when he got the news, he didn’t tell other inmates. But it was on TV, and everyone found out. Rather than stoke resentment, his commutation brought hope to inmates who had given up. “The atmosphere of the whole institution, it changed,” Clarence told me. “Everybody was happy… a lot of people walking around with that spark in the eye.”
When he got moved to a minimum-security camp, it was the same thing. “People knew I was coming to the camp before I knew I was coming to the camp.” And: “They were amazed to hear how God’s hand works.”
It was not easy in prison. Clarence faced what was essentially a death sentence — life in prison until he died — among repeat felons serving shorter time. “The first day I got into prison,” Clarence told me, “I said, ‘What put me in this bad position?’” His admittedly criminal actions started with money problems. So he got a job in prison and started saving money. He put together a plan for his future. He studied the Bible, took college courses, followed the rules....
What does Clarence want to do first? His “baby sister” Stephanie died of cancer in 2005. With his mother Linda, Clarence wants to visit her grave. Later he wants to get a job, and get the documents he needs to obtain a driver’s license.
Where does he want to be in five years? He wants a family and he wants to be established with a “meaningful career.” Are you bitter? I ask. He answers: “No, actually I’m not. I’m happy. This is a new day for me. My Commander in Chief gave me a new life.”
Two professorial perspectives on the USSC's proposal to reduce all federal drug sentences
In my view, last week brought one of the very biggest (and yet, so far, one of the least discussed) tangible developments in federal sentencing reform in the past few years. Specifically, as reported here, the US Sentencing Commission voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all federal drug offenses. I am pleased now here to share the insightful reactions to this important development coming from two insightful junior professors: Professors Kevin Bennardo and Todd Haugh.
Because Professor Haugh's comments are a bit shorter and more thematic, I will reprint his insights first:
First off, I agree wholeheartedly that this is a very important vote and a “really big deal.” But the reason I feel that way is not necessarily because it lowers penalties for drug trafficking offenders. While I think the Commission is right to make the proposal and I certainly support it — drug penalties have been too harsh for too long — what’s more important to me than the specifics of the proposal is the willingness of the Commission to make it at all. Let me explain.
According to the Commission’s press release (the actual language of the proposed amendment is available, although it’s hard to find — see here), the proposal will lower the base offense levels in the drug table by two across the board. That’s nothing to sneeze at because every two level increase equals about another 20% on the final sentence; at the higher sentencing levels, this is significant time. Yet, with mandatory minimums and prosecutorial charging practices, the Commission believes the prison population will be reduced only by around 6,500 inmates over five years. With approximately 100,000 federal inmates currently serving time for drug offenses, this reduction, although welcome, is as the Commission admits, “modest.”
But what isn't modest is the Commission’s increasing willingness to propose sentencing reform, i.e., sentencing reduction. This drug amendment proposal is the most recent example, but there are others. Last September, the Commission urged Congress to reduce mandatory minimums for drug offences, make the Fair Sentencing Act retroactive, and expand the safety valve. Around the same time, the Commission held a symposium on economic crimes and appeared to be genuinely considering the ABA’s proposal to remake the fraud guideline, which would lessen the impact of the loss calculation. And, a little over a year ago, the Commission suggested aligning the penalties for the receipt and possession of child pornography (a majority of judges call the penalty levels for receipt cases “excessive”). What’s important about these proposals is that every time the Commission comes out in support of (or even hints at) a sentencing reduction, it runs the risk of creating a “shadow guideline” — a hypothetical, less harsh version of a given guideline that, regardless of whether it is ultimately adopted, defense attorneys will argue should sway the court in the post-Booker, variance-driven regime. This is exactly the sort of thing your original post suggests, and savvy defense lawyers will do it. The Commission’s concern over creating shadow guidelines (and over the related Congressional reaction) has probably scuttled a number of proposals over the years to reduce unfair and disparity-producing guidelines. I am happy to see the Commission setting aside the concern of shadow guidelines and Congressional reaction and forging ahead to proactively improve the guidelines as a whole. While I’m sure some will argue this proposal does too little or comes too late, in my eyes it’s an important and continuing step in the right direction, and it shows a pattern of real leadership. So, I say go ahead and get excited — even if this amendment doesn't go through for some reason, it sure seems that there will be more positive reforms to come.
And now, here are Professor Kevin Bennardo's insights, which digs very effectively into the nuts and bolts of what the USSC's proposed amendment really does and means:
First, thanks to Doug Berman for the opportunity to share my thoughts on his forum. Second, I very much support the U.S. Sentencing Commission’s preliminary proposed amendment to reduce (most of) the base offense levels in the Drug Quantity Table by two levels. I agree with Doug’s assessment that this proposal is huge news.
However… the proposed amendment brings two hang-ups to my mind — one with the existing structure of the Drug Quantity Table and another with the mechanics of the proposed amendment:
(1) First, the proposed amendment continues to fundamentally bind the Drug Quantity Table to the mandatory minimum sentences set forth in 21 U.S.C. § 841. It simply (and laudably) knocks the levels down two pegs. Under the proposed amendment, offenders in criminal history category I who distribute a drug quantity that triggers a five year mandatory minimum will receive a base offense level of 24, leading to a range of 51-63 months (the lowest range that encompasses the five year mandatory minimum) rather than the current range of 63-78 months under offense level 26. Likewise, offenders facing a ten year mandatory minimum will start from a base offense level of 30, leading to a range of 97-121 months (the lowest range that encompasses the ten year mandatory minimum) rather than the current range of 121-151 month under offense level 32.
As I’ve written elsewhere, extrapolating the base offense levels in the Drug Quantity Table from the statutory mandatory minimums works unfairness for those offenders who are not actually subject to a statutory mandatory minimum sentence. Especially after the Supreme Court’s ruling in Alleyne v. United States and Attorney General Holder’s subsequent directive to federal prosecutors to structure indictments in such a way so as to avoid the operation of statutory mandatory minimum sentences on certain nonviolent, low-level drug offenders, we’ll only see increasing numbers of defendants who are not subject to statutory mandatory minimum sentences even though the sentencing court may find by a preponderance of the evidence that the offender distributed a quantity of drugs that would have triggered a statutory mandatory minimum had it been charged in the indictment and proven beyond a reasonable doubt. These offenders deserve to be sentenced under a Drug Quantity Table that is wholly uncoupled from the mandatory minimum sentences written into the federal drug statutes, particularly in the wake of the Commission’s recent recommendation to Congress to consider lowering statutory mandatory minimums. By continuing to extrapolate the base offense levels in the Drug Quantity Table from the statutory mandatory minimums, the proposed amendment fails to address this unfairness.
(2) Second, the proposed amendment to the Drug Quantity Table isn’t truly an “all drugs minus two” revision (like I expected it would be when I first read the press release). Under the proposed amendment, the lowest base offense level in the Drug Quantity Table remains at 6 and the highest base offense level remains at 38. Thus, offenders who distribute the smallest and largest drug quantities will see absolutely no change in their guideline calculations under the proposed amendment. They won’t receive any “minus two” treatment.
For example, an offender who distributes less than 250 grams of marijuana receives base offense level 6 under the current version of the Drug Quantity Table. Under the proposed amendment, that offender would still receive a base offense level of 6. (The difference is that under the amended version, all offenders who distribute up to one kilogram of marijuana fall within base offense level 6.) If the effect is to otherwise shift all base offense levels down by two, why not carry through with the same result at the margins of the Drug Quantity Table? Why not just retain the same drug quantities as the current Drug Quantity Table and shift the whole thing down by two levels so that the smallest quantities carry a base offense level of 4 and the largest quantities max out at level 36?
While the difference between base offense level 4 and 6 may not be significant to an offender in criminal history category I (although it might be if the offender has other upward offense level adjustments), the difference can be meaningful for an offender in more serious criminal history categories. For example, at offense level 4, a criminal history category III offender is subject to a guidelines range of 0-6 months and falls in Zone A of the Sentencing Table. But at offense level 6, the same criminal history category III offender is looking at a guidelines range of 2-8 months and falls in Zone B. For that offender, the difference between offense levels 4 and 6 is a difference of a guidelines sentence that requires no confinement and a guidelines sentence that requires at least two months of community confinement or home detention under section 5C1.1. (Similarly meaningful differences obtain for offenders in criminal history category VI, who get pushed out of Zone B and into Zone C with the jump from offense level 4 to 6.) If the rest of Drug Quantity Table is to be reduced by two levels, why not drop the smallest drug quantities down to offense level 4?
Sunday, January 12, 2014
Notable new data showing pot arrests way down in Colorado after reforms
This new Denver Post article, headlined "Marijuana case filings plummet in Colorado following legalization," spotlights one notable criminal justice metric that has been dramatically impacted by legal developments in the Centennial State. Here are some details:
Charges for all manner of marijuana crimes plummeted in the months after Colorado voters legalized limited possession of cannabis for people over 21.
According to a Denver Post analysis of data provided by the Colorado Judicial Branch, the number of cases filed in state court alleging at least one marijuana offense plunged 77 percent between 2012 and 2013. The decline is most notable for charges of petty marijuana possession, which dropped from an average of 714 per month during the first nine months of 2012 to 133 per month during the same period in 2013 — a decline of 81 percent.
That may have been expected — after all, people over 21 can now legally possess up to an ounce of marijuana. But The Post's analysis shows state prosecutors also pursued far fewer cases for marijuana crimes that remain illegal in Colorado. For instance, charges for possessing more than 12 ounces of marijuana dropped by 73 percent, and cases alleging possession with intent to distribute fewer than 5 pounds of marijuana dipped by 70 percent. Even charges for public consumption of marijuana fell statewide, by 17 percent, although Denver police have increased their number of citations issued for public consumption.
While marijuana prosecutions against people over 21 declined, so did prosecutions against people under 21, for whom all marijuana possession remains illegal except for medical marijuana patients.
Colorado Attorney General John Suthers said he thinks the drop in cases may be due to police not wanting to parse the complexities of the state's marijuana law. "I think they've kind of thrown their arms up in the air," he said.
Marijuana advocates, meanwhile, praised the drop in prosecutions — even for things that remain illegal under state law — because it lessens what they say is the racially biased impact of marijuana enforcement. A report last year from the American Civil Liberties Union found that blacks in Colorado were arrested for marijuana crimes at a rate nearly double that of whites. Overall, the report found arrests for marijuana possession in 2010 made up more than 60 percent of all drug-offense arrests.
"We're talking about not only saving the state time and money," said Art Way, a policy manager in Colorado for the Drug Policy Alliance, a supporter of legalization, "but we're no longer criminalizing primarily young adults, black and brown males primarily, with the collateral consequences of a drug charge."
The Post's analysis is not a comprehensive look at marijuana prosecutions in Colorado because prosecutors can also file cases in municipal courts, which aren't tracked by the data provided. Even though Colorado voters partially legalized marijuana for adults in 2012, there are still numerous marijuana crimes on the books. Possession of more than an ounce, cultivation of more than six plants and sales without a special state license all remain illegal and can be punished.
But Tom Raynes, the executive director of the Colorado District Attorneys Council, said the state's new marijuana laws are likely making it tougher for police to crack down on the remaining marijuana crimes. Because some marijuana possession and use is now legal, Raynes said that means police are no longer allowed to investigate in depth purely because they smell pot. "Just because your car smells like marijuana doesn't give an officer enough probable cause to initiate an arrest or a search," Raynes said....
[T]here is no evidence so far that Colorado's new laws on marijuana have resulted in a dramatic reduction in caseloads for prosecutors or police. Denver police, for instance, recorded only 3 percent fewer arrests for any crime in the first 11 months of 2013 when compared with the first 11 months of 2012.
What also appears relatively unchanged is the treatment of petty marijuana-possession charges: It is far more likely that those charges will be dismissed by either a judge or a prosecutor than it is the charges will result in a finding of guilty for the defendant, according to the data. For the charges filed in September 2012, 79 percent were ultimately dismissed. In September 2013, it was 84 percent.
But Raynes said those similarities belie the uncertainty police and prosecutors now feel when approaching marijuana cases. "With small quantities especially," he said, "I think law enforcement feels like they don't know which way to turn."
Though I obviously cannot speak for the blue line on the ground in Colorado, it seems to me that these data show law enforcement in the state knows exactly which way to turn: away from wasting time and energy and other scarce law enforcement resources on low-level marijuana matters and instead focusing more time and energy and other scarce law enforcement resources on more serious and harmful matters.
Cross-posted at Marijuana Law, Policy and Reform
Thursday, January 09, 2014
US Sentencing Commission suggests lowering drug guideline sentences across the board!
In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier today voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses. This official press release effecively summarizes and contextualizes this proposed amendments and others that were voted upon today at the USSC's public meeting:
The United States Sentencing Commission voted today to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses. Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.
The bipartisan Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline §2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.
With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).
“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety,” said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.
“Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population,” Saris said. “Our proposed approach is modest,” Saris said. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...
Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4).... The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.
The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.
For a whole bunch of reasons, this strikes me as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months. Indeed, this action by the USSC, though only now a proposal for comment, strikes me as the most important tangible federal sentencing development since the passage of the Fair Sentencing Act. Let me explain why:
1. This proposed amendment is essentially a statement by the USSC that it believes, in its expert opinion, the current guideline sentences for ALL drug offenses are ALL too harsh. Consequently, even before this amendment becomes official and gets even closer to becoming law, every defendant to be sentenced for ALL drug offenses ought to be arguing for a two-level reduction in the calculated guideline range (and/or a variance from the calculated range) based on the Commission's expert advice and opinion that the current guideline sentences for ALL drug offenses are ALL too harsh.
2. The usual critics of the current drug guidelines as way too harsh are sure to advise the USSC in the days ahead that this proposed amendment is a great idea (and, if they were shrewd, they might push for the amendment reduce sentences even more). Meanwhile, we will get to see if anyone will actively oppose this proposed amendments. In the past, DOJ could often be counted on to oppose any proposed pro-defendant guideline amendment. But these days, in the wake of AG Holder's recent speeches and work, I suspect DOJ will not actively oppose the amendment (and may even support it). If it turn out there is little or no opposition to this amendment, federal judges could and should feel even more confident now and in the near future to lower drug sentences when permitted in the exercise of their post-Booker discretion.
3. If (and when?) this guideline lowering amendment becomes official in November 2014, the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). Thus, not only could this amendment start lowering many federal drug sentences now and going foward, there is a chance it could end up lowering many long federal drug sentences already being served.
Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.
Wednesday, January 08, 2014
"Probability and Punishment"
The title of this post is the title of this notable new paper by Jacob Schuman now available via SSRN. Here is the abstract:
Imagine two defendants, A and B, who have each been convicted of drug trafficking. Defendant A was arrested with 1,000 grams of crack-cocaine. Defendant B was arrested with only 100 grams of crack but also a large quantity of cash, which he more than likely, though not certainly, earned by selling 900 grams of crack shortly before his arrest. Should A and B receive the same punishment?
Federal criminal law says that they should. This Article will argue that they should not. The probability that A sold 1,000 grams is higher than the probability that B did, so B deserves the lighter sentence.
The justice system can never determine with absolute certainty that an accused defendant committed a particular crime. To render judgment, therefore, the criminal law must estimate the probability that each defendant is guilty of the offense charged and then translate that probability into specific penal consequences. The guilt stage of criminal proceedings — the criminal trial — uses what scholars have called a “threshold model” of translation. Under this model, the prosecution may convict a defendant by establishing that the likelihood that he committed the crime charged exceeds a certain “threshold” level of probability. If it is “beyond a reasonable doubt” that the defendant did the deed, he will receive a guilty verdict. Otherwise, he will walk free. Neither outcome will reflect a precise measure of the odds of the defendant’s guilt. A “probabilistic model” of translation, by contrast, would vary the outcome of each trial depending on the probability that the defendant committed the crime of which he is accused.
This Article breaks new ground by demonstrating that the penalty stage of criminal proceedings — the sentencing hearing — also uses a “threshold model.” The United States Sentencing Guidelines instruct federal judges to make a series of factual findings that either add to or subtract from a recommended sentence for every case. Each adjustment to the recommended sentence depends on whether a certain factual predicate is “more likely than not” to be true — just like at trial, this threshold level of probability fails to precisely measure the odds of the defendant’s culpability. However, while scholars have offered several important justifications for the threshold model of conviction, these arguments do not hold up for the threshold model of sentencing. Moreover, the two flaws identified with the threshold model of conviction — inefficiency and unfairness — are not only present at the penalty stage of the proceedings, but in fact are exacerbated by a few unique features of the law of sentencing.
The threshold model of sentencing poses a particular problem when it comes to determinations of drug quantity in the punishment of drug offenders. Courts often rely on extrapolation and inference to make such determinations, and as a result, they frequently mete out lengthy sentences based on quantity estimations that carry a high risk of error. District courts and policymakers should mitigate the inefficiencies and injustices that result from these fact-findings by incorporating probability into drug quantity determinations at sentencing.
Sunday, December 29, 2013
Any short- or long-term Colorado predictions as recreational marijuana sales are set to begin?
Lots of mainstream (as well as not-so-mainstream) media outlets are now talking a lot about what may or may not happen in Colorado a few days from now when state-legalized and regulated sales of recreational marijuana begins with the start of 2014. This Reuters article is just one of many covering the buzz surrounding the opportunity for folks in Colorado to have a new legal way to get buzzed. Here how it starts:
The world's first state-licensed marijuana retailers, catering to Colorado's newly legal recreational market for pot, are stocking their shelves ahead of a New Year's grand opening that supporters and detractors alike see as a turning point in America's drug culture....
[S]tarting January 1, cannabis will be legally sold and taxed at specially regulated retailers in a system modeled after a regime many states have in place for alcohol sales - but which exists for marijuana nowhere outside of Colorado.
For the novelty factor alone, operators of the first eight marijuana retailers slated to open on Wednesday morning in Denver and a handful of establishments in other locations are anticipating a surge in demand for store-bought weed. "It will be like people waiting in line for tickets to a Pink Floyd concert," said Justin Jones, 39, owner of Dank Colorado in Denver who has run a medical marijuana shop for four years and now has a recreational pot license.
Jones said he is confident he has enough marijuana on hand for Day One but less sure of inventory levels needed after that. About 90 percent of his merchandise is in smokable form, packaged in small child-proof containers. The rest is a mixture of cannabis-infused edibles, such as cookies, candy and carbonated drinks. "People seem to prefer smoking," he said.
In addition to the "Black Friday"-type atmosphere sure to part of the New Year's Day experiences in Denver, this AFP article highlights that some folks are planning a road-trip in order to get to Colorado for another kind of trip:
Enterprising companies are even offering marijuana tours to cash in on tourists expected to be attracted to a Netherlands-style pot culture -- including in Colorado's famous ski resorts. "Just the novelty alone is bringing people from everywhere," said Adam Raleigh of cannabis supplier Telluride Bud Co.
"I have people driving in from Texas, Arizona, Utah... to be a part of history. Over the last month I have received somewhere between four to six emails a day and five to 10 phone calls a day asking all about the law and when should people plan their ski trip to go along with cannabis," he added.
But as highlighted in this lengthy AP article, headlined "Legal pot sales begin amid uncertainty in Colorado," perhaps the only real certainty come 2014 in Colorado is uncertainty:
Will it be a showcase for a safe, regulated pot industry that generates hundreds of millions of dollars each year and saves money on locking up drug criminals, or one that will prove, once and for all, that the federal government has been right to ban pot since 1937?
Legal pot's potential has spawned businesses beyond retail shops. Marijuana-testing companies have popped up, checking regulated weed for potency and screening for harmful molds. Gardening courses charge hundreds to show people how to grow weed at home....
Dixie Elixirs & Edibles, maker of pot-infused foods and drinks, is making new labels for the recreational market and expanding production on everything from crispy rice treats to fruit lozenges. "The genie is out of the bottle," says company president Tripp Keber. "I think it's going to be an exciting time over the next 24 to 48 months."...
The challenges, activists and regulators say, are daunting in Colorado and Washington. One of the biggest questions is whether they have built an industry that will not only draw in tens of millions of dollars in revenue but also make a significant dent in the illegal market. Another is whether the regulatory system is up to the task of controlling a drug that's never been regulated.
There are public health and law enforcement concerns, including whether wide availability of a drug with a generations-old stigma of ruining lives will lead to more underage drug use, more cases of driving while high and more crime....
To prevent the criminal element from getting a foothold, regulators have enacted residency requirements for business owners, banned out-of-state investment and run background checks on every applicant for a license to sell or grow the plant. Whether the systems are enough is anyone's guess.
I like the descriptive phrase that the "genie is out of the bottle," and think the green marijuana genie could grant many wishes and also create many nightmares. And I am eager to hear reader thoughts and predictions about what might happen in this arena in 2014 before the official start of this unofficial "turning point in America's drug culture."
Saturday, December 28, 2013
George Will laments "mandatory minimums as sledgehammers"
This past week, Washington Post columnist George Will made heavy use of recent opinions by Judge John Gleeson to join the chorus of commentators lamenting federal mandatory minimum sentencing statutes. Here are the closing paragraphs from this commentary, headlined "The sledgehammer justice of mandatory minimum sentences":
Kenneth Harvey was 24 in 1989 when he committed a crack cocaine offense. He had two prior offenses that qualified as felony drug convictions even though they were not deemed serious enough for imprisonment. They, however, enabled the government to make an 851 filing. He will die in prison. Harvey is 48.
Thousands of prisoners are serving life without parole for nonviolent crimes. Gleeson, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as “sledgehammers” to extort guilty pleas, effectively vitiating the right to a trial. Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. “Judging is removed,” Gleeson says, “prosecutors become sentencers.” And when threats of draconian sentences compel guilty pleas, “some innocent people will plead guilty.”
Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy (D-Vt.) and Rand Paul (R-Ky.) are questioning the regime of mandatory minimum sentences, including recidivism enhancements, that began with the Anti-Drug Abuse Act of 1986. Meanwhile, the human and financial costs of mass incarceration mount.
Wednesday, December 25, 2013
Astute commentary concerning meager crack clemency mercy finally shown by Prez Obama
In part because long-overdue and still meager grants of clemency by President Obama garnered so much MSM attention, I have not blogged much more about the Prez's decision to commute a few crack sentences last week (basics here). But especially on this holy day, I thought it useful to provide links to a few subsequent piece of commentary that effectively highlight why a lot more use of the clemency power is still needed and justified for mercy to even be even a glimmer of hope for the tens of thousands of non-violent offenders still serving the harsh sentences that the federal criminal justice system too regularly hands out:
Friday, December 20, 2013
New Sentencing Project policy brief on drug-free zones
I just received an e-mail promoting this new briefing paper from The Sentencing Project titled Drug-Free Zone Laws: An Overview of State Policies. Here is how the paper starts:
The premise behind drug-free zone laws was that drug trafficking near schools posed a danger to children. In order to protect children from drug activity, lawmakers established protected zones around the places where children were most likely to be present, including schools and public parks. Individuals caught using or selling drugs within the protected zone faced substantially higher penalties than others who engaged in the same conduct outside the zone.
The application of drug-free school zone laws has proved problematic for several reasons:
• First, in the sentencing schemes of several states defendants may face two distinct penalties for a single offense.
• Second, the laws are frequently drafted so broadly that they result in enhanced penalties for drug offenses that are a substantial distance from a school, that do not involve school children in the offense, or take place outside of school hours. In Alabama, for example, a drug sale that takes place as much as three miles from a school, college, or public housing project is subject to a mandatory five-year prison term.
• Third, because protected areas are clustered within urban, high-density population areas, the zones disproportionately affect people of color and economically disadvantaged citizens.
In recent years, these problems have led at least seven states, including Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New Jersey, and South Carolina, to reform their drug-free zone laws. This briefing paper provides an overview of these statutes nationally and an assessment of reform activity in recent years.
Should elected officials be subject to drug tests? And then forced to resign if they fail?
The questions in the title of this post are prompted by this new Politico article headlined "Trey Radel likely won’t resign after leaving rehab." Here are excerpts:
Despite an eventful two months that saw an undercover cocaine bust and a stint in drug rehab, Florida Rep. Trey Radel (R) doesn’t sound like a man who is going to resign.
On the same day he walked out of a Naples, Fla., drug rehabilitation clinic, the freshman congressman — who pleaded guilty to possessing cocaine in November — said he is wrestling with what he describes as a problem with alcohol, and added that he loves “serving” his southwest Florida constituents. “I’m excited to begin this process of rebuilding your trust and doing what you elected me to do,” Radel said at the news conference.
Radel, a freshman member of the House, was caught buying cocaine from an undercover federal agent near Dupont Circle in October. Radel bought what’s commonly known as an “eight ball” of cocaine from a federal agent, according to court records. When he realized he was purchasing the drug from a federal agent, he tried to throw it away, the records detail. When those agents entered his D.C. apartment, Radel handed over more cocaine. He pleaded guilty to possessing the drug in D.C. court in November, and entered a rehabilitation facility on Nov. 21. He has been on leave from the House.
Radel pledged to answer all questions at the news conference, but declined to detail the timeline of his cocaine use, or answer questions about why he waited nearly a month between getting caught buying cocaine and revealing it to the public. Radel said he was not with any other member of Congress when he was caught buying cocaine, and said elected officials should be subject to drug tests. He said he only used cocaine a handful of times.
The court of public opinion isn’t his only judge. The House Ethics Committee is investigating the incident. Radel pledged to “cooperate” with that inquest “in every absolute possible way that I can.”
Thursday, December 19, 2013
Clemency christmas miracle?: Prez Obama communiting 8 pre-FSA crack sentences and granting 13 pardons
As reported in this new article from the New York Times, "President Obama, expanding his push to curtail severe penalties for drug offenses, is expected on Thursday to commute the sentences of eight federal inmates who were convicted of crack cocaine offenses. Each inmate has been imprisoned for at least 15 years, and six were sentenced to life in prison." Here is more about this interesting and exciting news:
It would be the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies. Most of the eight would be released in 120 days.
In a statement prepared for release when the commutations are announced, Mr. Obama said that each of the eight men and women had been sentenced under what is now recognized as an “unfair system,” including under a 100-to-1 sentencing disparity between crack and powder cocaine offenses that was significantly reduced by the Fair Sentencing Act of 2011.
“If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society,” Mr. Obama said. “Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”
The recipients include several high-profile inmates who have received news media attention as examples of the effects of earlier tough-on-crime drug sentencing policies, in which the quantities of crack involved sometimes resulted in severe punishments. Many of them were young at the time of their offense and were not accused of violence.
Clarence Aaron of Mobile, Ala., for example, was sentenced to three life terms in prison for his role in a 1993 drug deal, when he was 22. Mr. Aaron’s case has been taken up by congressional critics of draconian sentencing and by civil rights groups, and has received significant media attention. Last year, the Justice Department’s inspector general issued a report criticizing the department’s pardon office for mishandling his clemency petition.
Margaret Love, a former Justice Department pardon lawyer who represents Mr. Aaron, said she received a call informing her of the decision on Thursday morning and called her client, who along with his family was “very grateful.”
“He was absolutely overcome,” she said. “Actually, I was, too. He was in tears. This has been a long haul for him, 20 years. He just was speechless, and it’s very exciting.”
Mr. Obama, who has made relatively little use of his constitutional clemency powers to forgive offenses or reduce sentences, is also expected to pardon 13 people who completed their sentences long ago. Those cases involved mostly minor offenses that resulted in little or no prison time, in line with previous pardons he has issued.
But the eight commutations opened a major new front in the administration’s criminal justice policy intended to curb soaring taxpayer spending on prisons and to help correct what the administration has portrayed as unfairness in the justice system. Recipients also include Reynolds Wintersmith, of Rockford, Ill., who was sentenced in 1994 to life in prison for dealing crack when he was 17, and Stephanie George of Pensacola, Fla., who received a life sentence in 1997, when she was 27, for hiding a boyfriend’s stash of crack in a box in her house. In both cases, the sentencing judges criticized the mandatory sentences they were required to impose by federal law at the time, calling them unjust.
In December 2012, The New York Times published an article about Ms. George’s case and the larger rethinking of the social and economic costs of long prison terms for nonviolent offenders. Mr. Obama mentioned the article in an interview with Time magazine later that day and said he was considering asking officials about ways to do things “smarter.”
Around that time, a senior White House official said, Mr. Obama directed Kathryn Ruemmler, his White House counsel, to ask the Justice Department to examine pending clemency petitions to assess whether there were any in which current inmates serving long sentences would have benefited from subsequent changes to sentencing laws and policy. The deputy attorney general, James M. Cole, returned the eight cases with positive recommendations from the department about six weeks ago, the official said....
Legislation pending in Congress, including a bill co-sponsored by Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, would make the Fair Sentencing Act retroactive for some offenders, and it would build into the system a process for inmates to apply to a judge for case-by-case review of whether a reduced sentence would be appropriate. The Obama administration supports that bill, the White House said, as a more orderly and regular way to ensure individualized analysis in addressing the broader inmate population.
According to the group Families Against Mandatory Minimums, about 8,800 federal inmates sentenced for crack offenses before the Fair Sentencing Act would be eligible to apply for a reduced sentence were the bill to become law. “Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” Mr. Obama said. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.”
I am quite pleased Prez Obama is finally, finally, finally using his constitutional clemency powers in a truly consequential and meaningful way, and I am especially pleased that there are now eight more defendants (and families) who get some relief from the unfair 100-1 pre-FSA crack sentences that nobody ever seeks to defend substantively. However, the numbers reported above highlight that for every new bit of post-FSA fairness achieved by these commutations, a thousand other defendants (and families) must continue to live with the consequences of a reform that has been interpreted only to prevent future injustices and not fix past ones.
More broadly, though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.
Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."
December 19, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (12) | TrackBack
Monday, December 16, 2013
"Vermont's Chief Justice Is Speaking Out Against the Drug War: Is Anyone Listening?"
The title of this post is the headline of this lengthy and notable article I just came across from a Vermont independent paper, Seven Days. Here are excerpts:
In recent weeks, Vermont Chief Justice Paul Reiber has gone public with an unusually assertive critique of the war on drugs and the “tough on crime” approach that has defined criminal justice for decades.
Reiber, who holds an office in which occupants usually avoid saying anything remotely controversial, has stopped short of recommending policy or criticizing any individuals or government bodies. But in a pair of speeches and a brief interview with Seven Days, he has declared ineffective the current reliance on police and punishment, and touted the merits of treatment-based models for dealing with crime rooted in substance abuse.
“Even with our best efforts, we are losing ground,” Reiber told a crowd at Vermont Law School last month. “The classic approach of ‘tough on crime’ is not working in this area of drug policy. The public responds very well to this ‘tough on crime’ message, but that does not mean it’s effective in changing individual behavior. If the idea is law enforcement alone will slow and eventually eliminate drug use altogether, that isn’t going to happen … The criminal justice system can’t solve the drug problem.”
Experts note that Reiber’s stance isn’t exactly revolutionary, as judges across the country have become more comfortable in recent years speaking publicly about issues affecting the court system. But, backers say, his entrance into the politically fraught debate about drug policy lends a powerful voice to their cause....
Statistics from the Vermont judiciary show the root of Reiber’s concern. Felony filings have jumped nine percent in the past four years, and more than half of that spike came in the form of drug cases. Abuse and neglect cases, meanwhile, are up 33 percent in the same time frame. While difficult to pinpoint, experts say many of those cases are children suffering at the hands of drug-addicted parents. (Reiber said he recently observed a day in Addison County juvenile court, where the docket has grown in recent years, and watched parents who are about to be incarcerated give up their parental rights.)
But Reiber’s two speeches covered more than just Vermont’s swollen court docket. In his Boston speech, Reiber highlighted reforms in Portugal, which in 2001 abolished criminal penalties for possession of all drugs, and replaced incarceration with drug treatment. Vermont’s chief justice called the results of that experiment “astonishing,” citing a study from the libertarian Cato Institute showing that Portugal experienced a large drop in drug use and a spike in the number of people seeking treatment.
During that speech, Reiber even said that American drug courts — in which nonviolent defendants charged with drug possession are diverted out of the court system and given a chance to turn their lives around — don’t go far enough. Only broader changes, he said, will have an impact....
When asked if he supported a Portugal-style drug legalization in Vermont, Reiber demurred. “That’s not my job. That’s for somebody else to decide,” he said. But, as he is doubtless aware, Reiber’s job title assures his comments are assigned more importance by both insiders and the public.