Thursday, August 11, 2016
If you really want to fully understand what DEA has done/what is changing and not changing about federal marijuana law and policy...
you have to check out these two new posts and materials linked therein from Marijuana Law, Policy & Reform for all the nuanced details:
If you do not have the time or inclination to read those posts, the DEA has this press release explaining these basics:
The Drug Enforcement Administration (DEA) announced several marijuana- related actions, including actions regarding scientific research and scheduling of marijuana, as well as principles on the cultivation of industrial hemp under the Agricultural Act of 2014....
DEA has denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In response to the petitions, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (HHS), which was conducted by the U.S. Food and Drug Administration (FDA) in consultation with the National Institute on Drug Abuse (NIDA). Based on the legal standards in the CSA, marijuana remains a schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse.
In his letter to the petitioners, DEA Acting Administrator Chuck Rosenberg offered a detailed response outlining the factual and legal basis for the denial of the petitions.....
DEA announced a policy change designed to foster research by expanding the number of DEA- registered marijuana manufacturers. This change should provide researchers with a more varied and robust supply of marijuana. At present, there is only one entity authorized to produce marijuana to supply researchers in the United States: the University of Mississippi, operating under a contract with NIDA. Consistent with the CSA and U.S. treaty obligations, DEA’s new policy will allow additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes.
Tuesday, August 09, 2016
Finding (substantive?) due process violation, federal district judge refuses to apply statutory mandatory minimum made applicable by government stash-house sting
A helpful reader alterted me to a very interesting new federal sentencing opinion authored by Gerald Austin McHugh, Jr. in US v. McLean, No. 13-CR-487 (ED Pa Aug. 8, 2016) (available here). The full 29-page McLean opinion is a must-read for all persons interested in federal drug sentencing and dynamic views on sentencing limits that might be found in the Fifth Amendment's Due Process Clause. The opinion's introduction highlights why this decision is so interesting (and might make for a very interesting case to watch if federal prosecutors appeal to the Third Circuit):
The latitude given to federal authorities in charging drug offenses has been described as creating a “terrifying capacity for escalation of a defendant's sentence.”1 [FN1: United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).] This case exemplifies that reality, as a defendant caught by an undercover “sting” operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents. At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs — 5 kilograms of cocaine — that would trigger such a high mandatory minimum.
In an earlier opinion, I described the historical background of ATF “sting” cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic. United States v. McLean, 85 F. Supp. 3d 825 (E.D. Pa. 2015). Although I denied Defendant’s Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case. I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.
August 9, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Thursday, August 04, 2016
After inquiries by members of Congress, Oregon US Attorney agrees to drop federal marijuana charges against Native American teen
I reported in this post last week about the suprising federal prosecution in Oregon of Devontre Thomas, 19-years-old Native American subject earlier this year to a one-count federal misdemeanor charge for possessing "about a gram" of marijuana. The press coverage of this case prompted members of Congress from Oregon, as reported in this local piece, to inquire about this prosecution:
Three members of Oregon's congressional delegation are demanding U.S. Attorney for Oregon Billy Williams explain why his office is prosecuting a Native American teenager for allegedly possessing a gram of marijuana. In letter [sent August 4, 2016], U.S. Sen. Ron Wyden, Sen. Jeff Merkley and Rep. Earl Blumenauer, all Oregon Democrats, ask Williams to give them a full list of the marijuana crimes his office has pursued since 2014, when Oregon voters legalized recreational cannabis.
"Marijuana possession charges have declined in Oregon over the past few years, and we hope to see that trend continue," the delegation writes. "We hope that your office continues this focus on dangerous criminal activity, rather than pursuing crimes involving a substance legal in Oregon."
Now, and surely not coincidentally, this piece from Marijuanapolitics.com reports in its headline that federal prosecutors are "to Drop Charges Against Oregon Teen Devontre Thomas." Here are the latest details:
Even those that don’t support legalizing cannabis were hard pressed to support the federal government threatening Oregon teen Devontre Thomas with a year long prison term over about a gram of marijuana. Drug War reform advocates and concerned citizens across the nation were frankly appalled of such a harsh sentence facing a nonviolent teenager in a state that had legalized cannabis with over 56% of the vote in 2014.
Thomas’ attorney, Ruben Iniguez worked tirelessly for his client and he left me a message stating that the charges would be dismissed in 60 days so long as Thomas stayed out of trouble and stayed employed and/or in school, conditions he was confident the teen would fulfill. Iniguez thanked advocates for reaching out and offering to help with Thomas’ case.
Wednesday, August 03, 2016
Prez Obama commutes 214 more federal sentences
As reported here by Politico, "President Barack Obama commuted the sentences of 214 people on Wednesday, bringing his total number of commutations to 562." Here is more about this latest encouraging clemency news, with some political context:
The president's biggest batch of commutations comes as Donald Trump touts a "law and order" message. But for advocates of sentencing reform, it's a sign that the administration isn't letting up on the 2014 Justice Department initiative to ease punishments for low-level drug offenders who received long sentences due to mandatory minimums. It includes 67 people who had been facing life sentences.
Obama has granted more commutations than his nine most recent predecessors combined, White House Counsel Neil Eggleston noted in a blog post on Wednesday. However, he added, “Our work is far from finished. I expect the President will continue to grant clemency in a historic and inspiring fashion.”
While criminal justice reform advocates have cheered the intention behind the initiative, they’ve complained that the pace of commutations has failed to meet expectations and that the process appears arbitrary. Eggleston promised to speed things up this spring, noting new resources for the Pardon Attorney, and in April, Deputy Attorney General Sally Yates wrote to a consortium of defense attorneys helping prisoners to submit applications, urging them to get applications in by May....
This latest batch of commutations comes at a politically sensitive time, just two weeks after Trump stressed a “law and order theme” at the Republican National Convention, with warnings of danger in the streets fueled by attacks on police in Dallas and Baton Rouge.... The focus on policing issues has drawn public attention away from the broader criminal justice reform agenda. Though there is bipartisan support for changes that would reduce mass incarceration, and the House is expected to vote on sentencing reform when it returns in September, advocates acknowledge that prospects for full passage before the election look grim.
The chart reprinted above comes from the White House blog posting by Eggleston, which also includes these statements of note:
Today began like any other for 214 federal inmates across the country, but ultimately became a day I am confident they will never forget. This morning, these individuals received a message from the President: your application for clemency has been granted.
This news likely carries special weight to the 67 individuals serving life sentences – almost all for nonviolent drug crimes – who, up until today, could only imagine what it might be like to once again attend a loved one’s birthday party, walk their child to school, or simply go to the grocery store. All of the individuals receiving commutation today, incarcerated under outdated and unduly harsh sentencing laws, embody the President’s belief that “America is a nation of second chances.”...
To date, President Obama has granted 562 commutations: more commutations than the previous nine presidents combined and more commutations than any individual president in nearly a century. Of those, 197 individuals were serving life sentences. And, today’s 214 grants of commutation also represent the most grants in a single day since at least 1900.....
In each of these cases, the President examines the application on its individual merits. As a result, the relief afforded is tailored specifically to each applicant’s case. While some commutation recipients will begin to process out of federal custody immediately, others will serve more time.
For some, the President believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the President has conditioned those commutations on an applicant’s seeking that treatment. For others, the President has commuted their sentences to a significantly reduced term so they are consistent with present-day sentencing policies. While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services. Underlying all the President’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance.
The individual nature of the clemency process underscores both its incredible power to change a person’s life, but also its inherent shortcoming as a tool for broader sentencing reform. That is why action from Congress is so important. While we continue to work to act on as many clemency applications as possible, only legislation can bring about lasting change to the federal system. It is critical that both the House and the Senate continue to work on a bipartisan basis to get a criminal justice reform bill to the President's desk.
Thursday, July 28, 2016
How much is federal prosecution of Native American teen for a marijuana offense in Oregon going to cost taxpayers?
The question in the title of this post is my effort to focus a bit more on the fiscal realities surrounding an interesting federal misdemeanor marijuana prosecution discussed in this lengthy local article from Oregon. The article is headlined "Devontre Thomas is 19. He Could Face a Year in Prison. For a Gram of Marijuana. How could this happen in Oregon?". The details here are so interesting for so many reasons, including a recent decision by the defendant not to agree to a plea to what seems to be federal charges less serious than might have been alleged. Here are some details:
Devontre Thomas is 19 years old. In a few weeks, he goes on trial in federal court in Portland. If he loses, he could go to prison for a year. For possessing an amount of cannabis that would fill one joint....
On April 7, 2016, the U.S. attorney for Oregon filed a one-count federal misdemeanor charge against Thomas for possessing "about a gram" of marijuana, according to his public defender, Ruben Iniguez. That's barely enough cannabis to dust the bottom of a Ziploc.
"I've never seen a case like this in my entire time practicing in federal court," says Bear Wilner-Nugent, a Portland criminal defense lawyer for 12 years. "It's outlandish." It's the first time in at least three years that the feds are prosecuting a weed crime in Oregon.
Since then, Oregon voters legalized recreational marijuana. Anyone over 21 can walk into a store and buy up to a quarter ounce — 7 grams — of cannabis. In the first five months of recreational sales, the state collected $14.9 million in marijuana sales taxes. But weed isn't equally legal everywhere in Oregon.
Thomas is accused of screwing up like any other teenager. But his alleged mistake occurred at Chemawa Indian School, a boarding school in the state capital, Salem, operated by the Bureau of Indian Education, an arm of the federal government. Observers say Thomas' prosecution, first reported by KGW-TV, is a poster case for how the nation's drug laws are still stacked against minorities — especially Native Americans. "There's absolutely racial disparity in how these cases are charged," says Amy Margolis, a lawyer at Emerge Law Group, a Portland firm that specializes in cannabis cases. "[Thomas] had the bad luck of being where and who he was."...
The prosecution of Thomas raises questions about the priorities of U.S. Attorney for Oregon Billy Williams, the state's chief federal prosecutor. Among them: Why are federal prosecutors, who claim that Oregon is a den of heroin, meth and opioid trafficking, spending time and resources to go after a teenager for such a small amount of pot? After two weeks of declining requests for comment, Williams finally issued this statement to WW: "We look forward to addressing the facts of the case in an appropriate manner and, most importantly, within the judicial process."
But members of Oregon's congressional delegation say it's alarming that Williams would prosecute the case at all. "I think it's deplorable," says U.S. Rep. Earl Blumenauer (D-Ore.). "What are we doing? Where are our priorities? A kid? Turning his life upside down? They don't have anything better to do to protect young people or Oregonians? It's incomprehensible to me."
As bizarre as Thomas' pot case is in weed-happy Oregon, the place where his alleged offense occurred is just as much of an anachronism. Chemawa, a Native American boarding school, was founded in 1880 and is the longest continually operating boarding school for Native American youth....
Thomas arrived at Chemawa from Madras High School, where he spent his first two years before transferring. He is a member of the Warm Springs tribe, and grew up with his parents and grandparents on the tribe's reservation 105 miles southeast of Portland.... A parent of a fellow Chemawa student described the Thomases as "a good family." His friends say his childhood was that of a normal, loved boy: spending the night at friends' houses, playing basketball on the Madras High junior varsity team....
Rayvaughn Skidmore, 20, also attended Chemawa with Thomas.... Skidmore says Thomas "would always help out his peers and be a leader—showing them what's the right things to do." Skidmore says Chemawa staff members would sometimes drive kids into town to go shopping at Keizer Station Shopping Center or Lancaster Mall in Salem, and he thinks that's when some students would meet up with marijuana connections and bring the substance back to campus.
But when kids on campus were caught with marijuana in their possession, "they'd get sent home." Skidmore says those infractions never resulted in legal charges, even though he knew plenty of classmates who regularly smoked weed. "These other students who are highly abusing any type of marijuana — I don't see why those guys get sent home when they should be prosecuted," he says....
Thomas was never technically arrested for marijuana possession. On March 25, 2015, Iniguez says, a staff member at Chemawa found roughly a gram of marijuana in a student's backpack. That kid said Thomas had sold him the weed. The Marion County Sheriff's Office confirmed that it responded to a call on that date involving Thomas and a juvenile classmate for "delivery" of marijuana.
Nearly a year after a classmate ratted out Thomas, a Chemawa staff member and a police officer drove him to the federal courthouse in Portland to appear before a judge. Lawyers interviewed for this story say it's likely that Thomas is feeling outsized consequences because Chemawa Indian School is under federal jurisdiction....
Retired federal drug prosecutor John Deits says Thomas' case is probably being handled as a federal case because "it's the only jurisdiction that can respond to the charge."
"Nobody else has authority," Deits says. "Marion County doesn't have authority because it's exclusive federal authority. And Indian tribes don't have jurisdiction because it didn't happen on their land."...
The resulting prosecution of Thomas shocks national observers. "He's 19. This is going to potentially haunt him the rest of his life," says Alison Holcomb, director of the American Civil Liberties Union's national Campaign for Smart Justice in Seattle. It's also a stark reminder that the War on Drugs isn't over — even in Oregon.
Observers find it bizarre that the feds have continued to pursue Thomas' case. But U.S. Attorney General Loretta Lynch has been vocal about her desire to keep pot illegal. Local responsibility for prosecuting Thomas falls to Williams, the U.S. attorney for Oregon.... "We are committed to just outcomes in every case," he says. "We look forward to exploring whatever the defense ask that we consider before determining what we believe is an appropriate outcome."
Other federal officials are critical of the prosecution. "The federal government hasn't prosecuted a marijuana-possession case in Oregon in five years," says U.S. Sen. Jeff Merkley (D-Ore.). "Situations like this are best left to be handled by the state."
Blumenauer, who as an Oregon congressman has become one of the nation's loudest voices for marijuana legalization, is enraged. "It is such a powerful symbol of a waste of resources and the inequity of the system," says Blumenauer, "because you and I can walk around in Portland, or in states where it is illegal, and find people using it. To single him out, to proceed with this, to ignore real problems that are killing people…" He pauses. "I'm sorry," he finally says. "I'm getting carried away. It's incomprehensible to me. I'm just sorry that Mr. Thomas is caught up in it."
The people surrounding Thomas in the federal courthouse in Portland on July 8 — Assistant U.S. Attorney Jennifer Martin, U.S. District Chief Justice Michael Mosman, three functionaries and a probation officer — expected Thomas to plead guilty to drug possession and enter a six-month diversion program. But a few moments earlier, Thomas' public defender, Iniguez, hustled into the courtroom with Thomas to announce a change of plans.
"He's not going to be pleading guilty today," Iniguez said. Martin, the prosecutor, looked shocked. "We want to go to trial?" she asked, flummoxed. "If we're making a federal case out of it," said Iniguez, sneaking in a smile, "we'll make a federal case out of it."
Holcomb, of the national ACLU, speculates that Thomas' last-minute decision not to plead guilty may show a steadfastness on his part to prove that he's no different from any other Oregon teenager who messed around with pot. "Devontre's response, to me, indicates a genuinely felt sense of unfairness," Holcomb says. "That it is unfair that he's being charged in federal court for this. It's the latest in a string of dramatic examples of how deeply people are feeling about unfairness and inequality…it sounds like that bubbled up for Devontre."...
Thomas is scheduled for trial Sept.13.
Like nearly all federal prosecutions that become media stories, I sense that this press account is revealing only the tip of an iceberg backstory. For starters, though subject formally only to a federal misdemeanor possession charge, the facts described here suggest that the defendant could have (and some might even say should have?) been subject to a federal felony marijuana distrubution charge. In addition, it seems the feds were seemingly eager to resolve the case through a plea that would prevent the defendant from serving any time or having a felony record. But now it seems that the defense may be gearing up for contesting the charges factually or perhaps constitutionally (or perhaps even via jury nullification if other avenues of defense falter).
I probably could go on and on about this case, and it is certainly one I will be keeping an eye on in the coming months. But, as suggested in the title of this post, whatever else one thinks about this case, I cannot help but wonder how many federal taxpayer dollars will end up being spent on this (minor?) matter.
July 28, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)
Thursday, July 21, 2016
Guest posting from Prof Mark Osler with advice to US Sentencing Commission on revising drug sentencing guidelines
Earlier this month, federal sentencing reform guru Mark Osler informed me that he put together some suggestions for the US Sentencing Commission in response to its request for public comment about proposed priorities. In turn, I urged Mark to put together a guest-post for this space to ensure his insights can be seen outside the Beltway. Here is what he sent my way:
Each year, the United States Sentencing Commission goes through a seasonal cycle; it starts and ends in May, when the Commission publishes proposed amendments (closing out one cycle) while setting out proposed priorities and inviting public comments to begin the next cycle. This year the public comment period lasts until July 25. You can get more complete information at www.ussc.gov.
The proposed priorities for this year are strikingly broad and encouraging for reform advocates. They include some specific items, including “consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c),” but also some fascinating broader priorities. The line that really caught my attention was this one: “the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.”
For those fascinated by federal sentencing, could there be a more enticing invitation?
I have submitted my own comment, which Doug has kindly linked here [down below]. It grows out of the response I got to a New York Times op-ed I wrote in 2014, suggesting that the weight of narcotics used in a conspiracy is a lousy proxy for the culpability of any one conspirator, and that it would be much better to instead simply enhance sentences for those individuals who make the most money from a narcotics operation. After that piece ran, I was surprised at the group I heard from the most: sentencing judges. A few pointed out (correctly) that they had proposed this decades ago, while others simply affirmed the problem with weight of narcotics as the central metric for a drug sentence. And, of course, they had depressing stories to share of sentences they had been forced to give out (pre-Booker) to low-level players in large narcotics organizations.
Here is how my comment begins:
Currently, because of the structure and importance of the Drug Quantity Table at Guideline §2D1.1(c), the primary input of sentence computation in narcotics cases is the weight of the drugs at issue, either by an individual or conspiracy. However, weight of narcotics is not a good proxy for culpability because it unfairly punishes the actions of too many low-level traffickers. If a true kingpin imports 150 kilograms of cocaine into the country and pays a trucker $1,000 to haul it, both of them fall under Guideline §2D1.1(c)(2), which provides for a base offense level of 36. While guideline sections §3B1.1 & 1.2 (distinguishing roles in the offense) provide some level of differentiation, that differentiation will likely be at most a swing of six offense levels.
We all know that the one-off trucker is not nearly as culpable as the kingpin, but the guidelines don’t reflect that because weight-driven sentences are mandated by Guideline §2D1.1(c). Sentencing judges have chafed at the resulting failure of proportionality ever since the beginning of the guideline era.
The false proxy of narcotics weight creates problems with proportionality and disparities because it too often obscures actual role and culpability. Moreover, it imposes a complexity to the guidelines that is unnecessary.
After discussing the benefits and challenges of making such a change, I suggest three alternate ways to amend the guidelines and accomplish this goal.
Perhaps you agree with me, maybe you don’t, or it could be that you think there is a much cleaner route to simplicity, proportionality, and the reduction of disparities. I urge you not only to read the rest of my comment, but to submit your own while the window is still open.
Tuesday, July 19, 2016
Has the drug war really "made policing more violent"?
The question in the title of this post is prompted by this new Democracy commentary authored by Jonathan Blanks that carries this full headline: "The War on Drugs Has Made Policing More Violent: What can be done to curb the excessive and, sometimes, predatory policing that has emerged from the Drug War?". Here are excerpts from the piece:
American policing today has become increasingly aggressive and, at times, even predatory. Policies and tactics have evolved to make police contact more confrontational. In so doing, they have increased the chances of violence and fatal uses of force. This has been particularly true of efforts aimed at fighting the Drug War. Police are incentivized to initiate unnecessary contact with pedestrians and motorists, and they do so most often against ethnic and racial minorities. Such over-policing engenders resentment among minority communities and jeopardizes public safety.
Some of the Drug War’s most disturbing images involve police officers in SWAT gear, kicking down doors, ransacking homes and endangering the lives of everyone inside during pre-dawn raids. Officers rummaging through a car for drug contraband while the driver sits helplessly on the sidewalk as onlookers drive by may be less violent, but is just as invasive and degrading. This experience can be humiliating under any circumstance, and any perception of race as playing a role in the stop piles resentment on top of humiliation.
The “pretextual” or “investigatory” stop is a common police tactic to investigate potential criminal activity — particularly drug possession and trafficking — in situations where there is no legal reason to suspect a crime is occurring. There is not a large amount of data on how often these stops produce contraband seizures, but what data there is suggests that the overwhelming majority of people who are stopped are guilty of no crime. Much like the pedestrian stops during the heyday of New York City’s “Stop and Frisk” program, most of the motorists stopped for investigatory purposes are black or Hispanic. Those who are stopped are often pressured to give consent to a search the officer has no legal right to demand.
There is evidence that some police departments, particularly state police and drug task forces in the American interior, target motorists with out-of-state plates in the hopes of finding drug proceeds and other unexplained cash. Cash-driven interdiction is the result of asset forfeiture laws that allow police departments to keep the proceeds of assets seized in connection with suspected crimes. This “policing for profit” puts budgetary concerns above public safety.
Officers are also trained to prepare for the possibility of violence in every encounter. Anti-police attacks such as the recent tragedies in Dallas and Baton Rouge heighten the fear and trepidation some officers feel in the field. While fewer police officers are feloniously killed in the line of duty per year than at almost any time in American history, officers who find themselves in stressful situations may be more likely to resort to the use of force, including deadly force, in order to maintain their sense of control during such encounters.
In short, the laws and tactics employed to fight the Drug War have transformed police officers from those who protect and serve to a force that, too often, actively searches the innocent and seizes for profit. Aggressive and antagonistic policing also increases the likelihood of disagreement, thereby increasing the possibility of escalation and the use of force that could lead to the injury or death of an innocent person. But the effects of aggressive policing extend beyond the outcome of any given police stop.
Although a majority of Americans express a “great deal” or “quite a lot” of confidence in the police, the same is not true across all racial and ethnic lines. Less than one-third of black respondents to a Gallup poll expressed a large amount of confidence in the police. And while a majority of Hispanics still have a lot of confidence in the police, just over 40 percent of other nonwhites do. Research by Charles Epp and others at the University of Kansas shows that support for police declines when individuals and the people they know have negative police experiences, particularly through investigatory stops.
This lack of confidence in the police can endanger communities. As Jill Leovy documented in her book Ghettoside, the poor relationships officers have with black Los Angelenos hinders homicide clearance rates and prosecutions. At the same time, the “broken windows” policing strategy that focuses on heavy enforcement of petty crimes has been shown to have no effect on the felony crime rate, the premise on which the strategy is based. Together, these create a tragic contradiction in which black communities are over-policed for drugs and petty crimes, but under-policed for homicides and other violent crimes.
I would generally agree with the suggestion that the drug war has contributed to the over-policing of many communities, particularly poorer communities, and I also fear that the drug war has contributed to strained relationships between police forces and certain communities. But I am not sure I would assert that the drug war has itself "made policing more violent": rather, based in part on experiences during alcohol Prohibition a century ago, I would be more inclined to assert that efforts to treat drug use and abuse through blanket prohibitions and criminal justice interventions creates the conditions for a society that has less respect for criminal laws and for police efforts to enforce order, and that in turn makes everyone involved in this part of the criminal justice system more prone to look to violence rather than to law as a means for securing order.
Some prior related posts:
- Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
- Is an end to the modern drug war the only real way to prevent future Fergusons?
- Senator Rand Paul links Ferguson tragedy to harms of the modern drug war
- After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?
Sunday, July 17, 2016
Ninth Circuit rejects district court's decision to base sentence on drug amount higher than jury's special verdict
A helpful reader made sure I did not overlook the interesting Ninth Circuit panel decision in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016) (available here), which was handed down on Friday. Here is how the helpful reader helpfully summarized the decison: "Somewhat unusually, the jury returned a special verdict finding the defendant responsible for less than 50 g of meth. The Circuit Court vacated his sentence after the District Court based the guidelines range on 4.5 kg and gave a stat max sentence of 20 years. An interesting variation on using (or not) acquitted conduct at sentencing, I think." And here are a few paragraphs from the decision:
The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because “[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.”....
Some of our sister circuits seem to have held that a jury’s special-verdict finding that the quantity of drugs involved in the crime is less than a particular amount did not preclude the judge from finding a greater quantity for purposes of sentencing. [CITES] But those cases did not directly address the argument raised by Pimentel-Lopez — that the affirmative finding by the jury that the quantity of drugs involved was less than a specific amount precluded a contradictory finding by the district judge during sentencing....
Some of our sister circuits seem to have assumed that the juries’ findings merely acquitted defendants of possessing higher quantities of drugs, and that may have been warranted on the record before them.... Here, by contrast, the record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances.
Sunday, July 03, 2016
"Utah Senator Meets Inmate Who Inspired Sentencing Law Rewrite"
The title of this post is the headline of this recent Roll Call article reporting on a notable meeting between a prominent advocate for federal sentencing reform and a prominent (former) "poster child" defendant representing the need for reform. The article includes a short video, and here are excerpts of a story that seems worth profiling on a weekend for celebrating US freedoms:
Sen. Mike Lee has told the story of Weldon Angelos’ prison term hundreds of times, describing the 55-year sentence over three marijuana sales in 72 hours as “crazy” and “nuts.”
An improbable set of events brought the two men together Wednesday in the Utah Republican's office on Capitol Hill. The recently freed Angelos hugged the lawmaker who made him a living symbol of the push to overhaul the nation’s sentencing laws.
“I’ve been telling his story a lot,” Lee said during the meeting. “A lot of the time I was telling this good story, I would sit there and wonder, actually, I wonder if he’s going to care if I’m using his name this frequently.”
“But your story was very helpful in explaining to people why we need this legislation and why we need to reform the law,” Lee told Angelos, who has two sons, ages 19 and 17, and a daughter, age 13.
Angelos, 36 and the founder of a hip-hop music label, said he met others in prison with unjust sentences. He plans to tell his story himself in Washington in support of the bipartisan bill. The legislation appears unlikely to pass in this election-shortened year, and amid disagreements among Republicans in both chambers.
“It kept me together, and my family,” Angelos said to Lee. “Your support was amazing and I just wanted to come here and thank you personally for supporting me and your commitment to criminal justice reform.” Lee has credited Angelos' case, which has attracted national attention, for sparking his work to change sentencing laws.
The legal action that freed Angelos on May 31 is somewhat mysterious and extraordinary. There is recent action in his court case — but no sign of a judge’s order releasing him. Lee said President Barack Obama set in motion a way to reopen the case and seek his release. It wasn’t a commutation or pardon but “another type of action,” Lee said. The senator, a former assistant U.S. attorney, is among dozens of people who have urged Obama to commute Angelos’ sentence, including former U.S. District Judge Paul Cassell, who sentenced Angelos.
That shows what a lot of extra attention on a case can accomplish, said Molly Gill, government affairs counselor for Families Against Mandatory Minimums, a group that flew Angelos to Washington this week and is working to end the types of sentencing laws that resulted in his sentence. “But it also shows there are a lot a people who don’t have and are never going to have that level of support,” Gill said.
Lee said Angelos’ release does not undercut the need for the legislation, since there are others out there who can’t get relief like Angelos. “We know there’s more to be done,” Lee said. A provision in the bill would prevent prosecutors from stacking mandatory minimum sentences related to certain gun possession crimes together in one case. It would reduce that mandatory minimum sentence from 25 years to 15 years. It would also allow judges to reduce the sentence for prisoners who are in Angelos’ situation.
Angelos was a first-time offender who was arrested in 2002 after Salt Lake City police set up controlled drug deals between Angelos and a confidential informant.... A jury convicted him of 13 charges, including three counts of possession of a gun in furtherance of a drug trafficking crime. Angelos in 2004 received a five-year mandatory minimum sentence for the first charge of possession of a firearm in furtherance of a drug trafficking crime; a consecutive 25-year sentence for the second, and another consecutive 25-year sentence for the third, FAMM said.
After nearly 12 years in federal prison, Angelos was surrounded Wednesday by the dark wood and art in Lee’s office. “It’s just overwhelming,” Angelos said. “I feel like I’m in a dream.”
Prior related post:
- Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence
Saturday, July 02, 2016
"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"
The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN. Here is the abstract:
After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies. This includes couriers and mules who transport drugs for small amounts of money.
Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions. The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers. This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions. Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules. These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.
This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants. An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants. It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability. And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions. Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating. Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.
Wednesday, June 29, 2016
US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"
On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015." This USSC webpage provides this summary of the report's contents and findings:
The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases [and includes these key findings]:
The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.
Drug cases continued to be the most common type of federal case. The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.
Immigration cases were the next most common, accounting for 29.3 percent of the total federal caseload. In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined.
In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.
Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.
Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.
The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.
June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)
Thursday, June 16, 2016
Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive
Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), has this notable new Huffington Post commentary headlined "The Least Congress Can Do on Criminal Justice Reform." Here are extended excerpts:
Five and a half years ago, I wrote an op-ed in this space in which I urged Congress to apply retroactively the recently passed Fair Sentencing Act of 2010 (FSA). The FSA reduced the indefensible disparity between crack and powder cocaine sentences from 100:1 to 18:1. Every member of the U.S. Senate, including Senator Jeff Sessions (R-AL), supported the FSA because they recognized that there was simply no scientific or public safety rationale for the disparity and yet ample evidence of its racially discriminatory effect. Yet five and a half years later, Congress still has not approved FSA retroactivity.
There are approximately 4,900 individuals still serving the crack cocaine sentences Congress repudiated when it passed the FSA. They are the people whose cases we used to illustrate why the law needed to change, yet they did not benefit. After the FSA passed, the U.S. Sentencing Commission fixed all of the non-mandatory minimum crack sentences by lowering its guidelines consistent with the new law. But the Commission only has authority to changes its guidelines, not mandatory minimum punishments set by Congress and found in statutes.
Today, legislation to make the FSA retroactive is included in a broader sentencing reform bill, which was introduced by Senator Chuck Grassley (R-IA) and is pending in the Senate.... [T]he U.S. Sentencing Commission, at FAMM’s urging and with FAMM’s support, has done all it can to reduce drug sentences and make those reductions retroactive for tens of thousands of federal prisoners. Notably, those who received retroactive relief from the Commission have reoffended at a lower rate than those who served their full sentences.
We recognize that bipartisan consensus and compromise are essential to passing criminal justice reform through the Congress. Because of the hard work of key senators and outside advocates from across the ideological spectrum, we believe that Senator Grassley’s bill would receive more than the 60 votes necessary to invoke cloture and would probably receive closer to 70 votes on final passage. But in an election year, especially a presidential election year, consensus is not enough. The bar is much higher. Unanimity, not broad consensus, is required. Without unanimity, any reform bills will require floor time and will be subject to hostile amendments that could significantly weaken them.
Unanimity is lacking today because of a number of factors. A couple of vocal but mistaken members of Congress insist that any drug sentencing reform will endanger the public, an election-year fearmongering tactic that has no basis in fact. There is also strong disagreement about whether to include minimum criminal intent requirements (“mens rea”) in any final reform bill. House Judiciary Chairman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) support broad mens rea protection; the White House and most Democrats strongly oppose it. The congressional calendar presents an equally daunting challenge. We are in June of an election year. The Senate only plans to be in session for roughly 40 days between now and the November election....
For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive. Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice. The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.
Friday, June 10, 2016
Split Seventh Circuit panel debates import and impact of jury finding of drug quantity rejected by the judge at sentencing
A helpful reader altered me to an interesting Seventh Circuit ruling today in US v. Saunders, No. 13-3910 (7th Cir. June 10, 2016) (available here). These passages from the partial dissent authored by Judge Manion provides a reasonable look into why this split panel's sentencing work is blog-worthy:
The jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram. This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount. These findings are irreconcilable. By its finding, the district court overrode the jury’s decision. The Sixth Amendment does not allow this. I dissent from this aspect of the court’s decision, but join in all other aspects....
A straightforward reading of the jury-verdict form does not allow this court to find an “effective acquittal.” The jury does not — in a single sentence, passing judgment on one count — actually convict and effectively acquit. Here, the jury convicted Saunders and Bounds of a capped drug quantity, and its verdict should stand....
In its ruling today, the court affirms the district court’s application of Watts to this case. It should not. Watts stands for the simple principle that a sentencing court may consider conduct underlying an acquitted charge if that underlying conduct is proven by a preponderance of the evidence. Watts, 519 U.S. at 157. Watts is therefore factually and legally distinguishable from this case. Instead of an acquittal, this case features an affirmative jury finding of fact. An acquittal is a legal conclusion, “not a finding of any fact,” and it “can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.” See id. at 155 (internal quotation marks omitted)....
As the Supreme Court observed [in Watts], “That [acquittal] verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.” Id. at 157 (emphasis in original). In contrast, the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated the Sixth Amendment rights of Saunders and Bounds. And if the jury system is to mean anything, this outcome is a problem.
Tuesday, June 07, 2016
Minnesota survey suggests marijuana reform can help with opioid issues ... and other recent highlights from Marijuana Law, Policy & Reform
Anyone interested and concerned about the so-called "war on drugs" or the relationship between criminal justice reform and public health has to be concerned these days with the national opioid problems. And one of many reasons I am a supporter of state experiements with various forms of marijuana reform is my hope that such reforms might be one of many ways to try to address opioid problems. Consequently, I was very intrigued to see the details of a lengthy report on a survey done by the Minnesota Department of Health (here in full) showing that a number of health care practitioners reported that some medical patients were able to decrease their use of prescription opioids. I report on this report in the first of the links below providing recent highlights from my Marijuana Law, Policy & Reform blog:
Friday, June 03, 2016
Prez Obama commutes 42 more federal prison sentences
As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:
Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.
Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.
White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.
Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:
Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.
To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....
Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.
Tuesday, May 31, 2016
"Marijuana Enforcement Disparities In California: A Racial Injustice"
The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:
Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction. Subsequently, misdemeanor marijuana arrests plummeted by 86 percent. Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher. This can be a substantial burden for young and low-income people. According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....
Infraction data are hard to come by in California. The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys. In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.
These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough. There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys. While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.
Cross-posted at Marijuana Law, Policy & Reform
Wednesday, May 25, 2016
"Many serving sentences for marijuana offenses deserve clemency"
The title of this post is the headline of this recent San Francisco Chronicle commentary authored by Alex Contreras, a former federal inmate serving a 40-year sentence for drug and gun charges who received clemency from President Obama in December 2015. Here is the text:
More than 10,000 clemency applicants wake up every day in a federal prison, awaiting an answer from President Obama on whether their lengthy prison sentence will come to an end. Most of them will be crushed when they are eventually denied. There are a few, however, who will realize the unlikely and overwhelming joy of finally being released. I was one of those rare few whose name was on the list of Obama’s recent clemency grants. And while I was excited to finally be going home — and extremely grateful to the president — I was also perplexed by those who weren’t on the list.
In speaking about criminal justice reform, Obama has highlighted the injustice of incarcerating marijuana offenders for “long stretches,” and has described marijuana as being “less harmful than alcohol” and a “vice,” not unlike cigarette smoking. He also instructed his Justice Department to not prosecute medical or recreational marijuana sellers who are operating under state law. But his pool of clemency recipients does not reflect these views.
Out of the 306 clemency grants, less than 3 percent were marijuana offenders, and not one of them was a medical marijuana provider, despite being the most deserving given that they were following state law and the Obama administration is no longer prosecuting them. Some of them are even serving decades in prison.
One such inmate is Ricardo Montes, a Latino serving a harsh mandatory 20-year sentence for operating a medical marijuana dispensary in Modesto under California law. Montes and his co-defendant received the longest sentences ever doled out to any medical marijuana provider, because — during the aggressive George W. Bush administration — they were charged under a fearsome mandatory minimum statue designed for drug kingpins and dangerous cartels.
Individuals like Montes are even more deserving of clemency than I was. Yet I fear that men such as Montes will be left to serve the remainder of their lengthy prison terms, while others reap the rewards of the change in the legal landscape of our nation’s marijuana policies. I hope that Obama’s remaining clemency grants will reflect his sensible views regarding marijuana, ensuring that our criminal justice system “keeps its basic promise of equal treatment for all.”
Sunday, May 22, 2016
A bunch of timely and notable new Quick Facts from the US Sentencing Commission
The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site. Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")
In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:
Mandatory Minimum Penalties (May 2016)
Drug Trafficking (May 2016)
Illegal Reentry (April 2016)
Alien Smuggling (April 2016)
May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)
Saturday, May 21, 2016
DAG Yates spotlights in commencement speech role of Georgia School of Law in clemency achievement
Today, Deputy Attorney General Sally Yates returned to her alma mater, the University of Georgia School of Law, to deliver this Commencement address. Like all good Commencement addresses, the whole piece is a lovely read. But sentencing fans should be especially interested in these closing comments:
I’d like to close by telling you about a recent intersection between the work of some students graduating here today and my work in Washington. As some of you may know, the Obama Administration has embarked on a clemency initiative designed to address the disproportionately long sentences given to lower-level, non-violent drug offenders who were sentenced under outdated drug laws. As Deputy Attorney General, I am charged with making a recommendation to President Obama on each petition. One such recent clemency petition was prepared by two of today’s graduates. These students participated in the representation of a man named Steven Boyd. In 1998, Mr. Boyd was convicted of selling crack and sentenced to life in prison. He had absolutely no history of violence and other than a few small time drug deals, no other criminal history. Yet the harsh mandatory minimum statutes in effect at the time mandated a life sentence. That’s life with no possibility of parole. The students prepared Mr. Boyd’s petition for clemency and submitted it to the Justice Department. That petition made its way to my desk and then on to the White House. And just three weeks ago, the president granted Mr. Boyd’s clemency petition. Mr. Boyd served 18 years and paid his debt to society. As a result of your classmates’ hard work and their commitment to their duty as lawyers, Mr. Boyd will be a free man. Your classmates unlocked justice for Steven Boyd.
Each and every one of you has both the capacity and the obligation, in the words of Attorney General Kennedy, to breathe meaning and force into the pursuit of justice. I hope that you will seize opportunities to right wrongs large and small, that you will stand up for the voiceless and that you will uphold the promise of our country. I hope that you will use the key that you are about to receive to unlock justice.
Thursday, May 19, 2016
Major sentencing reform becomes reality in Maryland
One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:
Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.
Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.
The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety. By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.
The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."
But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....
Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."
Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.
The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.
Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.
Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.
Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....
Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.
Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.
Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.
Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.
Tuesday, May 17, 2016
Noting that different prosecutors have notably different opinions on the SRCA
This lengthy new Daily Signal article, headlined "Is It Time for Criminal Justice Reform? 2 Law Enforcement Groups Are at Odds," details that the heads of the National District Attorneys Association and of the National Association of Assistant U.S. Attorneys have taken different positions on the leading statutory sentencing reform proposal in Congress. I recommend the piece in full, and here are excerpts:
While the unusual coalition of President Barack Obama and conservative groups hold out hope for the chance at what they call the most meaningful reform to criminal sentencing laws in a generation, frontline law enforcement officials are debating what the changes would mean for their communities.
Steven Cook, whose organization represents more than 5,500 assistant United States attorneys, believes Congress’ attempts to reduce prison sentences for certain low-level offenders will “substantially harm” law enforcement’s ability to “dismantle and disrupt drug trafficking organizations.”
William Fitzpatrick, the president of the official body representing state-level district attorneys across the U.S., views the issue differently, recently writing to congressional leaders that a Senate plan to reduce sentences for drug crimes allows “lower level offenders a chance for redemption.”
Cook and Fitzpatrick are two veteran law enforcement officials with vastly different jobs, but they have outsized roles in a debate over criminal justice reform with high stakes for the people they represent — not to mention the thousands of offenders who could benefit from changes to sentencing laws.
Fitzpatrick made headlines late last month when he authored a letter — on behalf of the National District Attorneys Association — to Senate leaders Mitch McConnell, R-Ky., and Harry Reid, D-Nev., expressing support for compromise legislation meant to reduce mandatory minimum sentences for low-level drug offenders. That endorsement has encouraged other law enforcement groups to get on board, with both the International Association of Chiefs of Police and Major County Sheriffs’ Association announcing their support last week....
But Cook, and his National Association of Assistant U.S. Attorneys, remain opposed to the legislation, and he and the organization have the ear of still skeptical lawmakers like Sens. Tom Cotton, R-Ark.; Jeff Sessions, R-Ala.; and David Perdue, R-Ga. “The notion we should save the American people money by releasing these repeat drug traffickers — and to take tools away from prosecutors needed to successfully prosecute them — is a breach of the fundamental responsibility that the federal government has to protect its citizens,” Cook told The Daily Signal.
Cook and Fitzpatrick know each other well, and have been in frequent communication about their positions on the Sentencing Reform and Corrections Act, as the Senate’s legislation is known (although Cook says he was “very surprised” when Fitzpatrick endorsed the new bill). Cook has served as an assistant U.S. attorney in the Eastern District of Tennessee for the last 29 years. Fitzpatrick is the district attorney for Onondaga County in New York, a position he’s held for 24 years.
McConnell is ultimately responsible for deciding whether to allow the full Senate to vote on the bill. In weighing his decision, McConnell is no doubt considering both sides of the argument communicated by Cook and Fitzpatrick.
As most compromises go, the legislation’s actual provisions are relatively modest. The bill aims to reduce certain mandatory minimum prison sentences created in the 1980s and ’90s during the war on drugs, which are laws that require binding prison terms of a particular length, and designed to promote consistency in punishment. Critics charge these laws have proven to be inflexible, and, by limiting judge’s discretion to rule on the specifics of a case, have led to unfair punishments for lesser offenders.
“The number one priority of the Sentencing Reform and Corrections Act is the promotion of public safety,” Sen. Mike Lee, R-Utah, a bill sponsor, told The Daily Signal. “Our criminal justice system is undermined when punishment delivered by the government does not fit the crime. Our bill better protects the American people by bringing balance back to federal sentencing.”
The bill, for example, would reduce the mandatory prison sentence required for drug offenders with two or more “serious violent felony” or “serious drug felony” convictions from life without parole, to 25 years. The bill’s authors adjusted this provision, and others, so that it does not allow violent offenders from being able to petition a judge for a retroactive early release. “To say a third-time drug offender gets 25 years instead of life, is that going to impact public safety?” Fitzpatrick said. “Not in my judgment. If you are lucky, you get 75 years on planet Earth. If you take a third of a person’s life away from him or her, that is not what I would call a slap on the wrist. In this society, we can survive safely in giving someone 25 to 30 years as opposed to life.”...
Still, for people who view drug trafficking as an inherently violent crime, as Cook does, the reform would reduce the punishment for offenders who have done more than possess and use drugs. “We are not prosecuting drug users in federal court,” Cook said. “This whole notion of low-level nonviolent drug offenders is wrong because that’s not who is coming into federal prison. We are dealing with dismantling large drug trafficking organizations.”...
According to Families Against Mandatory Minimums, a nonprofit advocating for sentencing reform, 92 percent of the 20,600 federal drug offenders sentenced in fiscal year 2015 did not play a leadership or management role in the offense, and nearly half had little or no prior criminal record.
Even so, Cook contends that prosecutors would lose a major leverage tool with weakened mandatory minimums, making it harder for them to get cooperation from defendants who would help them dismantle drug trafficking organizations. “It’s absolutely right that it [mandatory minimums] encourage people to cooperate with law enforcement officials and identify others involved in a conspiracy,” Cook said. “There are strong incentives for offenders to not help us identify other participants, and this is the only tool we’ve got. These are not easy people to deal with. They understand one thing, and that is how long they will be in prison.”
Fitzpatrick counters that prosecutors still could effectively do their jobs with less severe mandatory minimum sentences. “There will always be the give and take of plea bargaining and trying to get people to cooperate,” Fitzpatrick said. “I don’t think this statute undermines that, not when high-level offenders will still get significant prison time.”
Monday, May 16, 2016
President-elect in Philippines eager to bring back death penalty "especially if you use drugs"
The worldwide story of capital punishment has generally involved an ever-growing number of nations moving away from regular use of the death penalty. However, as this Time piece highlights, at least one notable nation has just elected a tough-on-crime leader eager to get his nation to execute again. The piece is headlined "Philippine President-Elect Rodrigo Duterte Plans to Bring Back the Death Penalty," and here are the basics:
The tough-on-crime presumptive winner of the Philippine presidential election, Rodrigo Duterte, has told reporters in his first postvictory comments that he intends to bring back capital punishment.
According to Philippine news outlet GMA, Duterte told reporters in Davao City on Sunday night that he would “urge Congress to restore the death penalty by hanging, especially if you use drugs.”
Other news outlets reported that he would also give police shoot-to-kill powers against mobsters and those violently resisting arrest. “If you resist, show violent resistance, my order to police [will be] to shoot to kill,” he declared, adding: “Shoot to kill for organized crime. You heard that? Shoot to kill for every organized crime.”
Duterte’s election success has been credited to his promise to eradicate crime in a country that has the world’s 11th highest homicide rate. During his campaign, he said he would “fatten the fish” of Manila Bay with the bodies of criminals.
The President-elect’s 22-year track record as the mayor of Davao City gives him enormous credibility with Philippine voters. Before he took mayoral office, Davao was known for its war-zone-like lawlessness, but last year, a crowdsourced poll declared it fourth safest city in the world....
He is due to be sworn in as President on June 30 for a six-year term.
Friday, May 13, 2016
Assailing the former drug czars for "their demagoguery" and "fact-free fearmongering"
Earlier this week I posted this commentary arguing against federal statutory sentencing reform headlined "Drug dealing is a violent crime" and authored by William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush. Now I see that Kevin Ring, Vice President of Families Against Mandatory Minimums, has this new Daily Caller commentary in response headlined "Drugs Czars Peddle Fear." Here are excerpts:
Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics, once offered his insight into America’s nascent drug problem: “There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. It’s easy to laugh off Anslinger’s ignorant comments because they were made in another era. But recent claims from two other former drug czars are similarly anachronistic and wrongheaded.
William Bennett and John Walters, who served as drug czars for Presidents George H.W. Bush and George W. Bush, respectively, wrote in a recent Washington Examiner op-ed, “Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.” But who’s being dishonest? After all, words have meanings. “Violent,” for example, means to use physical force to do harm. Yet Bennett and Walters would like people to believe that Debi Campbell, a drug addict herself who sold drugs to buyers in other states through the mail, was violent. Campbell’s most violent act was opening an envelope, yet she served 17 years in federal prison. Stephanie Nodd was sentenced to 30 years in federal prison for helping a friend sell drugs for one month. Stephanie was just 23 years old and had never lifted a finger against any person. Neither Campbell nor Nodd could by any conceivable measure be considered “violent” criminals. Bennett and Walters don’t want you to know they exist. But they do, and there are thousands more just like them.
Indeed, the U.S. Sentencing Commission found that of the 22,000 federal drug offenders sentenced in fiscal 2104, only 142 — or 0.7 percent — used actual violence or threats of violence. 84 percent neither used nor had a weapon during the commission of their offense. And while Bennett and Walters are correct that most federal drug offenders are not college kids who were caught smoking a joint, they mislead readers when they describe them as “experienced traffickers.” Nine out of ten federal drug offenders played no leadership or management role. Many sold drugs solely for the purpose of feeding their own addiction. Again, words mean things. Pretending every drug sale is by definition an act of “violent victimization” is simply false....
One wonders if Bennett and Walters realize how increasingly out of step they are with conservatives across the country. Conservative governors and state lawmakers are utilizing evidence-based solutions to reduce crime and bloated prison budgets, a win-win situation for taxpayers. Many conservatives in Washington, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Jeff Flake (R-AZ) support sentencing reform. Cruz has written, “Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration.”
But, the old drug czars say, “The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.” Even if that’s true, it’s irrelevant. The choice before Congress is not between incarcerating drug offenders and doing nothing. The more important question is whether sentencing flexibility for drug crimes can more effectively reduce recidivism — and at less cost to taxpayers — than harsh mandatory minimums. The indisputable answer, based on decades of states’ experiences, is yes.
Refusing to let any tragedy go to waste, Bennett and Walters suggest that the frightening increase in heroin overdoses is further evidence of the need for tough drug sentencing laws. What they fail to mention is that heroin dealers are already subject to stiff mandatory minimum sentences and have been for the past 30 years. This heroin epidemic is occurring under the regime Bennett and Walters helped to create. If that were not damning enough to their case, consider that the rate of illegal drug use by teenagers is the same today as it was when Bennett quit as drug czar in 1988.
I know that Bennett and Walters are genuinely concerned about making the country safer. And I agree with them that drug dealing is reprehensible and deserving of swift and certain punishment. Too often, however, their demagoguery appears calculated to exploit the public’s fears about safety the way Harry Anslinger exploited its racial prejudices decades ago. Conservatives interested in reducing crime and drug abuse should ignore fact-free fearmongering and support reforms that are rooted in science, evidence, and experience.
Prior related post:
- Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"
Monday, May 09, 2016
Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"
William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush, have this notable new Washington Examiner op-ed headlined "Drug dealing is a violent crime." Here are excerpts:
The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives.
As former directors of the Office of National Drug Control Policy, we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.
Claims by President Obama and others that federal prisons are filled with "nonviolent drug offenders" and that drug dealing is a "victimless crime" are grotesquely dishonest. How can the drug trade be victimless when most Americans know a victim? How can it be non-violent when we witness the carnage every night on the local news?...
In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses. And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses. Most of these convicted drug dealers are career criminals with long rap sheets. By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.
Drug dealing is inseparable from violent victimization. Illegal drugs kill tens of thousands each year in overdose deaths. More die in violent acts and accidents under the influence of drugs. Still more die slowly of blood-borne diseases contracted through injection drug use and through high-risk behavior while under the influence of drugs, including prostitution to support addiction. Street-level dealers look into the eyes of these victims daily as they take addicts' money and foster their self-destruction. Traffickers at levels above the street know this reality and take their wealth from it, spreading death across neighborhoods and across the globe....
Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime. Drug dealing depends on addiction; addicts consume the vast majority of the drug supply; the dealer cultivates users to create more addicts in a murderous cycle.
Drug dealers know drugs will eventually impair judgment and bend free will, altering personality and poisoning bonds to loved ones. We know drug use and addiction degrade millions of lives — impairing education, employment and parenthood. Drugs are at the root of much of the child abuse, endangerment and domestic violence perpetrated against the innocent.
But the destruction is much wider. Addiction and drug dealing ravage whole communities, urban and rural. We need look no further than the daily reports of the heroin epidemic today, or the still-vivid memories of the meth epidemic and the crack epidemic. Drug dealing makes whole neighborhoods war zones, places of economic blight and large-scale victimization. There is no greater single source of actual harm to Americans today — none. The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.
Knowing this, it is an utterly irresponsible effort to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system. The truth about drug dealing is this: It requires cruelty and willful indifference to the visible suffering inflicted on others — over and over again — harming individuals, families and whole communities.
Saturday, May 07, 2016
Drug war and tough-on-crime legislation (and even more judicial discretion) keeping Ohio's prison population growing
My own Columbus Disptach has this article about Ohio's continued struggles to keep its prison population under control. The piece is headlined "Ohio prison population could hit record high this summer," and here are excerpts:
Ohio's prison population is rising, threatening to set a new record as soon as July, despite repeated efforts to divert inmates from state lockups. The number of inmates in Ohio prisons increased 15.1 percent from 2005 to 2016, according to a report released today by the Correctional Institution Inspection Committee, a legislative prison watchdog agency. At the same time, prison overcrowding hit 132.1 percent, up from 114.8.
This is happening at a time when the overall crime rate in Ohio has gone down roughly 15 percent. Gary Mohr, director of the Department of Rehabilitation and Correction, sounded the alarm at statewide opiates conference earlier this week. "I think it’s a pretty safe bet that by July 1 of this year we will set an all-time historic record of incarcerated Ohioans.”
The population stood at 50,899 on May 2; the all-time record is 51,273, set in Nov. 2008. “The day I started in this business, there were 291 women Ohio women locked up in the prison system in Ohio." Mohr said. "Today we’re at 4,300.”...
Mohr has said repeatedly he will not build another prison during his time as prisons director, which could end when Gov. John Kasich leaves office at the end of 2018. State officials have been vigorously trying for a decade to reduce the prison population, largely by diverting non-violent inmates to community-based correction and substance abuse treatment programs.
But the CIIC report points out those efforts have been undercut by new "tough on crime" laws, many of them dealing with sex offenders, passed by the General Assembly, as well as a 2006 Ohio Supreme Court ruling that relaxed requirements for judges to state specific reasons for meting out maximum sentences. As a result, the number of inmates sentenced to the maximum term increased dramatically, requiring an extra 6,700 prison beds.
Drug offenses make up 27 percent of all crimes, the largest single category, followed by crimes against person (24.7 percent), property offenses (12.6 percent), burglary (11.2 percent), and sex offenses (7.5 percent). While men still far outnumber women behind bars, women are coming to prison at a much faster rate, mostly for non-violent drug and property crimes, the report showed.
The (reader-friendly) report that provides the data for this new story can be accessed at this link.
Friday, May 06, 2016
More evidence of a failed drug war: foot soldier always high while fighting
This recent AP article, headlined "Reports: Chemist Who Worked on Drug Cases Was Usually High," provides yet another reason why I see the so-called war on drugs to be an abject failure. Here are the details:
Investigators say a former chemist who tested drugs for Massachusetts police departments was high almost every day she went to work for eight years, potentially putting thousands of criminal convictions in jeopardy.
Sonja Farak, who worked for an Amherst lab that tested drug samples for police, was high on methamphetamines, ketamine, cocaine, LSD and other drugs during most of her time there, even when she testified in court, according to a state investigative report released Tuesday. Farak worked at the lab between 2005 and 2013.
Cyndi Roy Gonzalez, a spokeswoman for Attorney General Maura Healey, said the information gathered about Farak "will no doubt have implications for many cases," but it is unclear just how many. She said it will be up to prosecutors, defense attorneys and the courts to determine the full scope of cases affected by Farak's misconduct. "We are deeply concerned whenever the integrity of the justice system is called into question or compromised," she said.
One defense attorney told the Boston Herald that Farak handled about 30,000 cases during her career. "This is a statewide scandal, and I think it's going to take an enormous toll on the system," attorney Luke Ryan said.
Farak's case is unrelated to the case of Annie Dookhan, who worked at a state drug lab in Boston. Dookhan was sentenced in November 2013 to at least three years in prison after pleading guilty to faking test results in criminal cases that jeopardized thousands of convictions.
The American Civil Liberties Union of Massachusetts said the number of criminal cases affected by Farak's misconduct could rival the approximately 40,000 cases thrown into question by Dookhan's actions. "It's now beyond doubt that the drug war in Massachusetts during the Dookhan-Farak era was built on a foundation of falsified evidence," said Matthew Segal, the ACLU's legal director.
Segal said he doesn't have an estimate of how many cases could be challenged, but said prosecutors who got convictions using drug samples she tested "have an obligation to identify and notify everyone who might have been denied due process" as a result of Farak's actions. Segal said that because Farak admitted ingesting lab "standards" — drug samples used as benchmarks to test against substances submitted by police for testing — all cases that went through the lab should be re-examined.
Last year, the Supreme Judicial Court of Massachusetts ordered an investigation into the timing and scope of Farak's misconduct. Healey's office conducted the investigation. Many of the shocking details came from Farak's own grand jury testimony, including that she once smoked crack before a 2012 state police accreditation inspection of the now-closed lab. Farak also testified that she manufactured crack cocaine for her personal use in the lab.
Farak, 37, of Northampton, pleaded guilty to tampering with evidence, stealing cocaine from the lab and unlawful possession in January 2014 and was sentenced to 18 months behind bars and five years of probation. She served her sentence and has been released from prison....
Gov. Charlie Baker said the state will likely have to allocate more money to deal with the Farak scandal. In the Dookhan case, the state Legislature authorized up to $30 million to cover costs incurred by the court system, prosecutors, public defenders and other state agencies. "We certainly believe we are going to have a big responsibility to work with the courts and with others to make sure that people who are affected by this have the appropriate opportunity to engage in that conversation," Baker said. "And we fully expect we will be doing that for the next several months."
Thursday, May 05, 2016
Prez Obama commutes 58 more federal drug sentences
As detailed via this terse White House press release, "On May 5, 2016, President Barack Obama granted commutation of sentence to 58 individuals." The release lists the 58 new recepients of executive clemency, and a quick scan reveals that all appear to be drug defendants and most involving cocaine and/or crack.
This press release from NACDL adds these notable particulars: "In his second set of clemency grants in under six weeks, President Barack Obama commuted the sentences of 58 prisoners today, 28 of whom were applicants whose petitions were supported by Clemency Project 2014."
UPDATE: I just saw that Prez Obama now has this new Medium entry headlined "A Nation of Second Chances." Here are excerpts:
Earlier this spring, I met with a group of individuals whose sentences were commuted either by President Bush, President Clinton, or myself. They were all at different stages of a new chapter in their lives, but each of their stories was extraordinary.
Take Phillip Emmert. When he was 27, Phillip made a mistake. He was arrested and convicted for distributing methamphetamines and received a 27-year sentence. So, by the time he was released, he’d have spent half his life behind bars. Unfortunately, while in prison, his wife was paralyzed in an accident. So while he was in prison, Phil learned everything he could about fixing heating and air conditioning systems — so he could support his wife when he got out. And after his sentence was commuted by President Bush, he was able to do just that. Today, he’s gainfully employed. He’s a caregiver for his wife, an active father, and a leader in his community.
Like so many nonviolent offenders serving unduly harsh sentences, Phillip is not a hardened criminal. He’s taken responsibility for his mistakes. And he’s worked hard to earn a second chance.
Today, I commuted the sentences of an additional 58 individuals just as deserving as Phillip — individuals who can look to him as inspiration for what is possible in their lives.
As President, I’ve been working to bring about a more effective approach to our criminal justice system, particularly when it comes to drug crimes. Part of that effort has been to reinvigorate our commutations process, and highlight the individuals like Philip who are doing extraordinary things with their second chances. To date, I will have commuted 306 individual sentences, which is more than the previous six presidents combined....
As a country, we have to make sure that those who take responsibility for their mistakes are able to transition back to their communities. It’s the right thing to do. It’s the smart thing to do. And it’s something I will keep working to do as long as I hold this office.
Lots of new and notable recent state marijuana reform developments
Regular readers know they should be regularly checking out my (not-so) regular postings at my other active blog Marijuana Law, Policy and Reform for updates on marijuana reform stories. This week there have been particularly notable reform developments in notable states from coast to coast that I thought merited highlighting here:
Even for those folks only interested in marijuana reform as a small piece of broader criminal justice reform policies and politics, I think developments in big state California and swing state Ohio are especially important to watch. In particular, if there were to be big marijuana reform wins at the ballot in November (e.g., if voters were to approve reforms by 60% or more) in both states --- and also, say, in at least one other big swing state like Arizona or Florida --- I think it would thereafter prove close to impossible for the next President not to make some kind of federal marijuana reform a priority in 2017.
Monday, May 02, 2016
Reviewing the type of federal drug case that the SRCA should most impact
This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:
When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.
Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.
Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....
Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.
At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...
The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."
This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.
That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.
In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.
Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.
John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.
Thursday, April 28, 2016
Oklahoma joins long list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Criminal justice reform bills signed into law by Oklahoma governor," another state known for its conservative politics should now also be known as another state that has enacted significant reforms intended to soften its sentencing system and reduce its prison population. Here are the details:
Four criminal justice reform measures were signed into law by Gov. Mary Fallin on Wednesday. The action comes at a time when the state’s prison system is operating at 122 percent of capacity.
“We want to be tough on crime, but we want to be smart on crime,” Fallin said.
The criminal justice reform bills she signed Wednesday are:
- House Bill 2472, which gives prosecutors discretion to file charges for crimes that are not subject to the 85 percent rule as misdemeanors instead of felonies. The 85 percent rule requires that those convicted of certain crimes, including rape and murder, serve at least 85 percent of their sentences before they can be considered for release.
- HB 2479, which reduces the mandatory minimum sentence for drug offenders charged only with possession.
- HB 2751, which raises the threshold for property crimes classified as felonies to $1,000 from $500.
- HB 2753, which would broaden defendants’ eligibility for drug courts and community sentencing. The measures are designed to curb the growing prison population.
“These measures are just the beginning,” said Rep. Pam Peterson, R-Tulsa, the House author of the bills. Fallin said it costs just under $20,000 a year to incarcerate an offender and about $5,000 a year for one defendant in drug court.
House Speaker Jeff Hickman, R-Fairview, said the state still has a crisis in corrections and incarceration. “This is not the end of the mission,” he said, adding that other criminal justice reform bills are working their way through the legislative process.
Former Tulsa County District Attorney Tim Harris attended the bill signing in the Blue Room at the Capitol. The measures give the state more options to prevent Oklahomans from becoming convicted felons and help them get the treatment they need, Harris said. “It is not soft on crime,” he said. “It holds criminals accountable without breaking the bank. It is cost neutral to the taxpayer right now.”
Oklahoma County District Attorney David Prater said the state needs to take steps to move mental health and substance abuse treatment to the front end. “With measures like this, I do believe that ultimately we will see a decrease in the prison population while not increasing violent crime, and actually this will have a positive impact, I believe ultimately, on public safety,” Prater said.
Monday, April 18, 2016
Colorado Department of Public Safety releases "Marijuana Legalization in Colorado: Early Findings"
This new Denver Post piece, headlined "Fewer Coloradans seek treatment for pot use, but heavier use seen," reports on this notable new official state government report from Colorado (which I believe was just released today, but bears a cover date of March 2016). Here is a basic summary via the Denver Post piece:
Colorado's treatment centers have seen a trend toward heavier marijuana use among patients in the years after the state legalized the drug, according to a new report from the Colorado Department of Public Safety. The 143-page report released Monday is the state's first comprehensive attempt at measuring and tracking the consequences of legalization.
In 2014, more than a third of patients in treatment reported near-daily use of marijuana, according to the report. In 2007, less than a quarter of patients reported such frequency of use. Overall, though, the number of people seeking treatment for marijuana has dropped since Colorado voters made it legal to use and possess small amounts of marijuana. The decrease is likely due to fewer people being court ordered to undergo treatment as part of a conviction for a marijuana-related crime.
The finding is among a growing body of evidence that marijuana legalization has led to a shift in use patterns for at least some marijuana consumers. And that is just one insight from the new report, which looks at everything from tax revenue to impacts on public health to effects on youth. Among its findings is a steady increase in marijuana use in Colorado since 2006, well before the late-2000s boom in medical marijuana dispensaries. The report documents a sharp rise in emergency room visits related to marijuana. It notes a dramatic decline in arrests or citations for marijuana-related crimes, though there remains a racial disparity in arrest rates.
But the report, which was written by statistical analyst Jack Reed, also isn't meant as a final statement on legalization's impact. Because Colorado's data-tracking efforts have been so haphazard in the past, the report is more of a starting point. "[I]t is too early to draw any conclusions about the potential effects of marijuana legalization or commercialization on public safety, public health, or youth outcomes," Reed writes, "and this may always be difficult due to the lack of historical data."
It's not just the lack of data from past years that complicates the report. Reed also notes that legalization may have changed people's willingness to admit to marijuana use — leading to what appear to be jumps in use or hospital visits that are really just increases in truth-telling. State and local agencies are also still struggling to standardize their marijuana data-collection systems. For instance, Reed's original report noted an explosive increase in marijuana arrests and citations in Denver, up 404 percent from 2012 to 2014. That increase, however, was due to inconsistent data reporting by Denver in the official numbers given to the state.
Intriguingly, though this lengthy report comes from the Colorado Department of Public Safety, not very much of the report discusses general crimes rates at much length. But what is reported in this report is generally encouraging:
Colorado’s property crime rate decreased 3%, from 2,580 (per 100,000 population) in 2009 to 2,503 in 2014.
Colorado’s violent crime rate decreased 6%, from 327 (per 100,000 population) in 2009 to 306 in 2014.
Cross-posted at Marijuana, Law, Policy & Reform
Saturday, April 16, 2016
"The history of drug criminalization in America is a history of social panics rooted in racism and xenophobia"
The title of this post is the subheadline of this new Salon comentary carrying the primary headline "The real reason cocaine, heroin and marijuana are illegal has nothing to do with addiction." Here is how the lengthy piece gets started:
Looking out at the trail of devastation and death that the heroin epidemic has left in its wake, it’s hard to imagine that not long ago one could purchase the drug from a Sears catalogue. Heroin was created by German chemists during the late 1890s and marketed through Bayer, the company best known for selling aspirin. For decades, suburban housewives could peruse pages of flashy advertisements for Bayer Heroin, the cure for sore throats, coughs, headaches, diarrhea, stress and menopause. In fact, until recently the percentage of Americans using opium-derived medicine was higher at the turn of the 20th century than at any other time in history.
The majority of illicit drugs we see today were once legal, popular and used for medicinal purposes. Cocaine made its debut in toothache drops marketed to children. Cannabis was recognized for its ability to relieve pain and nausea long before it became associated with youthful vagrancy.
As the world grapples with the fallout from the War on Drugs — and heads towards UNGASS 2016, a possible opportunity to put things right — it’s important to know the history of these drugs and their journey from medicine to menace. We didn’t suddenly discover that they were far more addictive or dangerous than other medicines. In fact, the reasons that drugs like heroin, cocaine, marijuana and others are illegal today have far more to do with economics and cultural prejudice than with addiction.
Heroin was the first to fall from pharmaceutical darling to a demonized, black-market street drug. Long used as a cure for aches and pains, it wasn’t until Chinese immigrants came to the United States to work on the railroads and mines that opium-based products such as heroin were perceived as dangerous. American settlers were not happy with the Chinese arrivals, who brought with them a cultural tradition of smoking opium for relaxation in the evenings. The settlers accused the Chinese of “taking our jobs,” and economic resentment morphed into rumors of Chinese men luring white women into opium dens and getting them addicted. Rumors turned to fear, which turned to hysteria, which politicians seized upon. In 1875 California passed the first anti-opium law, enforced by raids on Chinese opium dens. Other states soon followed. The first federal law regulating heroin was the Harrison Act of 1914, which eventually led to its criminalization.
Cocaine was criminalized for similar reasons, only this time the backlash was directed against black Americans. After the Civil War, economic resentment simmered over the freed slaves gaining a foothold in the economy. White Southerners grumbled about black men “forgetting their place,” and fears spread about a drug some of them smoked, which was rumored to incite them to violence. In the early 1900s New Orleans became the first city to slap down laws against cocaine use and the trend quickly spread, dovetailing with efforts in Latin America to criminalize the coca leaf, an ingredient in cocaine, which was used for religious purposes among indigenous populations.
Marijuana was next in the firing line. During the 1920s, tensions sprang up in the South over the influx of Mexican immigrants who worked for low wages. By the 1930s, the Great Depression had bred panic among people desperate for work and they directed their angst towards immigrants. The media began propagating stories about Mexicans and their mysterious drug, marijuana. The first national law criminalizing marijuana, the Marihuana Tax Act of 1937, passed thanks to a strong push from Harry Anslinger, head of the Federal Bureau of Narcotics, who referred to marijuana as “the most violence-causing drug in the history of mankind.”
While such claims of marijuana inducing violence may sound ridiculous to those of us who know marijuana as a drug that does precisely the opposite, it goes to show that the criminalization of drugs has little to do with relative risk or danger. Instead, the main impetus for criminalization is fear over certain groups seen as an economic or cultural threat to established America. Recognizing this fact does not mean ignoring or minimizing the very real harm that drugs can cause.
Most illicit drugs carry risks and serious potential for problematic use. But so does glue. So do gasoline, cough syrup, shoe polish, paint thinner, nail polish remover, cleaning fluids, spray paint, whipped cream cans, vanilla extract, mouthwash, nutmeg, prescription pills and countless other household items that are not only addictive, but potentially fatal if misused.
Friday, April 15, 2016
Supreme Court of Canada declares a one-year(!) mandatory-minimum drug sentence unconstitutional
In the United States, some defendants can and have received mandatory life without parole sentences for drug offenses, and most federal mandatory minimum drug sentences come in 5- and 10-year chunks of required prison time even for first offenders. And, to date, none of these laws have been found constitutionally problematic largely because, back in 1991, the Supreme Court held in Harmelin v. Michigan that the Eighth Amendment's cruel an unusual clause did not preclude Michigan from imposing a mandatory LWOP sentence on a defendant convicted of possessing more than 650 grams of cocaine.
Fast forward a quarter-century and this news about a new Canadian court ruling shows our neighbor jurists to the north have a much different conception of what kind of mandatory drug sentence violates a constitutional provision precluding cruel and unusual punishments. The article is headlined "Rulings from Canada's top court strike down mandatory minimum sentences for drugs and bail conditions," and here are the basics:
The Supreme Court of Canada has ruled that two key "tough on crime" measures brought in by the previous Conservative government are unconstitutional. In the first case, the court ruled 6-3 that a mandatory minimum sentence of one year in prison for a drug offence violates the Charter of Rights and Freedoms. It centres on Joseph Ryan Lloyd, a man with drug addictions in Vancouver's Downtown Eastside, who was convicted of trafficking after police caught him in 2013 with less than 10 grams of heroin, crack cocaine and crystal methamphetamine.
The court ruled the sentence cast too wide a net over a wide range of potential conduct, catching not only the serious drug trafficking that is its proper aim, but also conduct that is "much less blameworthy. "
"If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentence," the decision reads. "In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment." The dissenting view argued that the law as drafted was narrow enough, and that it did not amount to cruel and unusual punishment.
The sentence imposed stemmed from the so-called "omnibus crime bill" brought in by the Stephen Harper government in 2012. The Safe Streets and Communities Act, also known as C10, made sweeping changes to Canada's criminal justice system, including mandatory minimum sentences for non-violent drug offenders.
On Friday, Prime Minister Justin Trudeau said the Liberal approach to criminal justice is to protect public safety while respecting rights. He said mandatory minimums are appropriate in some conditions, and noted that past Liberal governments have imposed them for certain crimes like murder. "At the same time, there is a general sense, reinforced by the Supreme Court decision, that mandatory minimums brought in by the previous government in a number of cases went too far," he said after an event in Waterloo, Ont.
A mandate letter from Trudeau to Justice Minister Jody Wilson-Raybould called for an overhaul of the measures brought in by the Conservatives. "You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system," the letter reads.
In the other case, the Supreme Court was unanimous in ruling that a person who is denied bail because of prior convictions should be able to receive credit for time served before sentencing. Normally, a person denied bail can get 1.5 days of credit for each day spent in pre-sentence custody, reflecting what are often harsh conditions with a lack of access to programs. Under sentencing reforms introduced by the Conservatives in 2009, a person denied bail because of a previous conviction is not eligible for enhanced credit.
The mandatory minimum ruling in R. v. Lloyd can be accessed at this link, and here is one key passage from the majority opinion in Lloyd:
The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable. This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences. In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.
Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one‑year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter. This violation is not justified under s. 1. Parliament’s objective of combatting the distribution of illicit drugs is important. This objective is rationally connected to the imposition of a one‑year mandatory minimum sentence under s. 5(3)(a)(i)(D) of the CDSA. However, the provision does not minimally impair the s. 12 right.
Thursday, April 14, 2016
Two timely stories of marijuana reform not yet helping those serving "Outrageous Sentences For Marijuana"
From two very different media sources today, I see two very notable stories of defendants convicted of marijuana-related offenses serving extreme sentences for a type of behavior that is now "legal" at the state level in some form throughout much of the United States.
First, the New York Times has this new editorial headlined "Outrageous Sentences for Marijuana," which starts this way:
Lee Carroll Brooker, a 75-year-old disabled veteran suffering from chronic pain, was arrested in July 2011 for growing three dozen marijuana plants for his own medicinal use behind his son’s house in Dothan, Ala., where he lived. For this crime, Mr. Brooker was given a life sentence with no possibility of release.
Alabama law mandates that anyone with certain prior felony convictions be sentenced to life without parole for possessing more than 1 kilogram, or 2.2 pounds, of marijuana, regardless of intent to sell. Mr. Brooker had been convicted of armed robberies in Florida two decades earlier, for which he served 10 years. The marijuana plants collected at his son’s house — including unusable parts like vines and stalks — weighed 2.8 pounds.
At his sentencing, the trial judge told Mr. Brooker that if he “could sentence you to a term that is less than life without parole, I would.” Last year, Roy Moore, chief justice of the Alabama Supreme Court, called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws, but the court still upheld the punishment.
On Friday, the United States Supreme Court will consider whether to hear Mr. Brooker’s challenge to his sentence, which he argues violates the Eighth Amendment’s ban on cruel and unusual punishments. The justices should take the case and overturn this sentence.
Second, AlterNet has this new piece with this lengthy headline, "As Marijuana Goes Mainstream, California Pioneers Rot in Federal Prison: Luke Scarmazzo and Ricardo Montes opened a dispensary in Modesto. Now they're doing 20 years in federal prison. Their families want them home. " Here is how it starts:
Behind the headlines about President Obama’s historic visit to federal prisons and highly publicized releases of non-violent drug offenders, the numbers tell a different story. Despite encouraging and receiving more clemency petitions than any president in U.S. history — more than the last two administrations combined, nearly 20,000 — very few federal prisoners are actually being granted clemency.
Nowhere is this irony more glaring than in the world of legal cannabis. Cannabis is now considered the fastest-growing industry in the nation, yet remains federally illegal. The sea change from the Department of Justice since 2009 has allowed state-legal cannabis industries to thrive. Federal solutions seem to be around the corner and for the first time cannabis businesses are being publicly traded and receiving legal Wall Street investment.
Ricardo Montes and Luke Scarmazzo are two of the 20,000 federal prisoners appealing to President Obama for clemency. They have exhausted their appeals and are serving 20-year mandatory minimum sentences for openly running a dispensary in the early days of California’s pioneering medical cannabis law. The irony isn’t lost on them that their crimes are now legal and profitable, but their appeals for clemency aren’t based on justice anymore — they just want to be home with their kids. Their daughters, Jasmine Scarmazzo, 13, and Nina Montes, 10, are appealing directly to President Obama to release their fathers via a Change.org petition.
Given that the Supreme Court has often stated and held that the Eighth Amendment's "scope is not static," but "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958), I think both these cases should be pretty easy constitutional calls if courts and/or executive branch officials took very seriously a commitment to updating and enforcing Eighth Amendment limits on lengthy prison terms in light of the obviously "evolving standards of decency" concerning medical use of marijuana throughout the United States and the world. But, while hoping for some judicial or executive action in this arena, I am not holding my breath that any of these medical marijuana offenders will be free from incarceration anytime soon.
April 14, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Wednesday, April 13, 2016
Restrictive medical marijuana reforms proposed by Ohio legislature in shadow of broader initiative effort
As a bellwether state with a long history of picking White House winners, I often feel very lucky to be in Ohio in big election years to observe how local, state and national politics surrounding various criminal justice issues play out in the Buckeye State. But this year, given my particular interest in marijuana reform, law and policy and the coming (brokered?) GOP convention in Cleveland, my Buckeye political and policy cup is already running over.
I bring all this up today because, as detailed in this new local article, "Ohio state lawmakers release plan to legalize medical marijuana," local GOP legislative leaders in Ohio are now actively peddling an important (but restrictive) medical marijuana reform proposal at the same time the national Marijuana Policy Project is gathering signatures and building a campaign for (much broader) medical marijuana reform in the form of a November 2016 voter initiative to amend the Ohio Constitution. Here are the basics and latest in these dynamic ongoing Buckeye marijuana reform developments:
Ohio state lawmakers released plans today to legalize marijuana for medical use. The bill being considered would allow doctors to write notes for marijuana for medical use. It would still allow for drugfree workplaces.
People who use medical marijuana, could still be fired from their job, according to the bill. The bill will not allow for home growing of marijuana.
Doctors would be required to periodically report to the state why they are prescribing marijuana instead of other drugs. Anyone taking medical marijuana under the age of 18 would require parental consent.
Ohio lawmakers are also asking the federal government to change marijuana from a Schedule 1 drug to a Schedule 2 drug. Hearing will start soon on the legislation and there could be as many as two hearings a week. No word yet on where Gov. John Kasich stands on the legislation.
The move comes as groups start collecting signatures to put an issue on the ballot before voters in November.... [and] polls show that legalizing marijuana just for medical use is popular across the state....
Ohioans for Medical Marijuana, which is backed by a national group, expects to spend $900,000 collecting 306,000 valid voter signatures to qualify for the November ballot.
Cross-posted at Marijuana Law, Policy and Reform (where in coming days I will do some anaylsis of the Ohio bill and reactions thereto).
Important drug offender data begging hard normative policy question regarding noncitizen US prisoners
I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals." The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):
U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....
[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.
As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).
The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.
There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons. As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.
In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.
In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.
The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population. Federal drug and immigration enforcement are for now inextricably tied together....
Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.
Reforming drug sentencing laws is one thing. Releasing criminal aliens back into U.S. interior, is quite another. The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public. Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.
This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.
It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.
The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?
Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner. But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).
April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)
Friday, April 08, 2016
Latest USSC retroctivity data suggest prison savings approaching $2 billion from drugs-2 guideline amendment retroactivity
The US Sentencing Commission's website has this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated April 2016, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through March 25, 2016 and for which court documentation was received, coded, and edited at the Commission by March 29, 2016."
The official data in the report indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, now 26,850 federal prisoners have had their federal drug prison sentences reduced by an average of two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $1.9 billion dollars.
As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the US Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.
Should we be linking nationwide crime spikes to heroin addiction and the black market it is driving?
The question in the title of this post is prompted by these two recent New York Times article:
As with all short-term and long-term changes in crime rates and patterns, I am strongly disinclined to assert or even suggest that a single causal factor provides a simple account for what is transpiring. That said, I do not think it is a mere coincidence that opioid problems and broader crime problems have been increasing together.
Tuesday, April 05, 2016
"How Drug Warriors Helped to Fuel the Opioid Epidemic"
The title of this post is the headline of this notable new Atlantic piece. Here is how it starts and ends:
Despite almost 50 years of the drug war — a policy that creates black markets, enriches drug cartels, and fuels killing zones in scores of cities, even as it causes the United States to cage more human beings than any other democracy in the world — it remains extremely easy for Americans to acquire the most addictive, deadly drugs.
“Overdoses from heroin, prescription drugs, and opioid painkillers have overtaken car accidents to become the leading cause of injury-related deaths in America,” The Economist reports. “In 2014, they were responsible for 28,647 deaths. Between 2001 and 2014, deaths from heroin overdoses alone increased six-fold, according to the National Institute on Drug Abuse. On average, 125 people a day die from drug overdoses, 78 of them from heroin or painkillers. These numbers have been compared to deaths from HIV in the late 1980s and 1990s.”
Had the War on Drugs merely failed to prevent this epidemic, even as it destabilized numerous countries and undermined domestic liberties, it would be an abject failure. But federal drug policy has actually been worse than useless in heroin’s rise.
In a saner world, American researchers and patients would’ve spent the last several decades experimenting with marijuana to maximize its potential as a pain reliever. Pot use isn’t without health consequences, but is much less harmful than many prescription drugs. Instead, drug warriors fought to stymie marijuana research, keep pot illegal, and stigmatize medical marijuana as a dangerous fraud, even as doctors prescribed more opioid painkillers — that is, medical heroin. Many get addicted, and when the pills run out, they seek a street substitute....
“What has made it previously difficult to emphasize treatment over criminal justice,” President Obama said last month, “is that the problem was identified as poor, minority, and as a consequence, the thinking was, it's often a character flaw in those individuals who live in those communities, and it's not our problem they're being locked up. One thing that's changed in this opioid debate is that it reaches everybody. Because it's having an impact on so many people, we're seeing a bipartisan interest in addressing this problem … not just thinking in terms of criminalization or incarceration, which unfortunately has been our response to the disease of addiction."
But even today’s reformers are far too timid. The War on Drugs rages daily, and it is still a catastrophe. The catastrophe is rooted in the black markets that federal policy creates. It is exposed by the urban killing zones that those markets guarantee. It is shown to be futile by the ease of acquiring the most addictive drugs despite prohibition. And it is exacerbated by decades of efforts to prevent milder drugs from serving as substitutes. End it.
Monday, April 04, 2016
Senators Grassley and Feinstein convening hearing on whether DOJ is "Adequately Protecting the Public" from state marijuana reforms
This recent press release from US Senate's Caucus on International Narcotics Control details that this caucus has a hearing scheduled to explore how the federal government is keeping an eye on state-level marijuana reforms. (Exactly what this has to do with international control is unclear, but big-government drug warriors on both sides of the political aisle like Senators Grassley and Feinstein have never really been too keen to worry about limiting government growth in this arena.) Here are the basic details on what is prompting this hearing:
Sen. Chuck Grassley, Chairman of the Judiciary Committee and the Caucus on International Narcotics Control, and Sen. Dianne Feinstein, Co-chairman of the Caucus on International Narcotics Control, will hold a hearing entitled, “Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?”
In August 2013, the Obama Administration decided to effectively suspend enforcement of federal law on marijuana in states that legalized it for recreational use. But to disguise its policy as prosecutorial discretion, the Administration also announced federal priorities that it claimed would guide its enforcement going forward. These priorities include preventing marijuana from being distributed to minors, stopping the diversion of marijuana into states that haven’t legalized it, and preventing adverse public health effects from marijuana use. At the time, the Justice Department warned that if state efforts weren’t enough to protect the public, then the federal government might step up its enforcement or even challenge the state laws themselves. This put the responsibility on the Department of Justice to monitor developments in these states, develop metrics to evaluate the effectiveness of its policy, and change course if developments warranted.
But a report from the Government Accountability Office that Grassley and Feinstein requested found that the Administration doesn’t have a documented plan to monitor the effects of state legalization on any of these priorities. Moreover, according to the report, officials at the Department could not even say how they make use of any information they receive related to these priorities. Grassley and Feinstein are convening this hearing to explore this problem.
What I find most notable and disconcerting about this hearing is that it claims to be exploring whether the big federal government bureaucrats inside the Beltway at DOJ who are very far removed from direct public accountability are "protecting the public" from state reforms in Alaska and Colorado and Oregon and Washington which were enacted directly by the public through voter initiatives.
Cross posted at Marijuana Law, Policy and Reform.
Monday, March 21, 2016
SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform
Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws. Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado. This is huge news for state marijuana reform efforts, but not really all that surprising. (It would have been bigger news and surprising if the motion was granted.)
Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito. Here is how this dissent stats and ends:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....
Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II). Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana. See Colo. Const., Art. XVIII, §16. Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).
In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado. The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. See Complaint ¶¶54–65. They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana. Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16. The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.
The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.
Cross-posted at Marijuana Law, Policy & Reform.
Sunday, March 20, 2016
"Black Kids Less Likely To Use Hard Drugs Than Whites, Still Go To Jail More"
The title of this post is the headline of this recent posting at Medical Daily providing a summary this new research paper titled "Health Disparities in Drug-and Alcohol-Use Disorders: A 12-Year Longitudinal Study of Youths After Detention" published in the American Journal of Public Health. Here are excerpts from the summary:
The United States is plagued with many forms of substance abuse, and youth leaving juvenile detention are especially vulnerable. Many think African Americans in this group are especially prone to drug use, but a new study says this stereotype is unfounded. According to researchers at Northwestern, abuse of and dependence on cocaine, hallucinogens, amphetamines, and opioids is less common among African Americans than among non-Hispanic whites.
The thorough study is the first of its kind. Researchers followed the youths into their late 20s, for up to 12 years after release. At that point, non-Hispanic whites had 30 times the odds of becoming addicted to cocaine as African Americans did. “Those findings are striking, considering the widely accepted stereotype of African Americans as the most prevalent abusers of ‘hard drugs,’” said Linda A. Teplin, senior author of the study and professor of Psychiatry and Behavioral Sciences at Northwestern University Feinberg School of Medicine, in a press release.
Though whites were more likely to abuse or depend on hard drugs, their incarceration numbers didn’t follow the same pattern. According to an estimate by the U.S. Department of Justice, among males born in 2001, one in three African Americans and one in six Hispanics will be incarcerated at some point in their lives, compared with just one in 17 Caucasians. “We must address — as a health disparity — the disproportionate incarceration of African Americans,” Teplin said.
In terms of differences between the sexes, the study found that 91.3 percent of previously delinquent male youths and 78.5 percent of females had had a substance abuse disorder by their late 20s. However, males were more likely to abuse alcohol and marijuana, and females were more likely to exhibit opiate, cocaine, amphetamine, and sedative addiction.
Friday, March 18, 2016
Making the (Trumpian?) case for winning the drug war via full legalization
This cover story of the April 2016 issue of Harper's magazine is authored by Dan Baum and is headlined "Legalize It All: How to win the war on drugs." And, as I mean to suggest via the headline of this post, this article may be channeling what GOP Prez candidate front-runner Donald Trump really thinks about how to improve modern drug policy in the US. (Recall that I had this post on my marijuana reform blog, way back when Trump first announced his serious run for the Oval Office last summer, which highlights that Trump not all that long ago had once suggested full legalization would be the only way to "win" the drug war.) Here are is an except from the first part of the lengthy Harper's piece:
Nixon’s invention of the war on drugs as a political tool was cynical, but every president since — Democrat and Republican alike — has found it equally useful for one reason or another. Meanwhile, the growing cost of the drug war is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight black men has been disenfranchised because of a felony conviction.
As long ago as 1949, H. L. Mencken identified in Americans “the haunting fear that someone, somewhere, may be happy,” an astute articulation of our weirdly Puritan need to criminalize people’s inclination to adjust how they feel. The desire for altered states of consciousness creates a market, and in suppressing that market we have created a class of genuine bad guys — pushers, gangbangers, smugglers, killers. Addiction is a hideous condition, but it’s rare. Most of what we hate and fear about drugs — the violence, the overdoses, the criminality — derives from prohibition, not drugs. And there will be no victory in this war either; even the Drug Enforcement Administration concedes that the drugs it fights are becoming cheaper and more easily available.
Now, for the first time, we have an opportunity to change course. Experiments in alternatives to harsh prohibition are already under way both in this country and abroad. Twenty-three states, as well as the District of Columbia, allow medical marijuana, and four — Colorado, Washington, Oregon, and Alaska — along with D.C., have legalized pot altogether. Several more states, including Arizona, California, Maine, Massachusetts, and Nevada, will likely vote in November whether to follow suit.
Portugal has decriminalized not only marijuana but cocaine and heroin, as well as all other drugs. In Vermont, heroin addicts can avoid jail by committing to state-funded treatment. Canada began a pilot program in Vancouver in 2014 to allow doctors to prescribe pharmaceutical-quality heroin to addicts, Switzerland has a similar program, and the Home Affairs Committee of Britain’s House of Commons has recommended that the United Kingdom do likewise. Last July, Chile began a legislative process to legalize both medicinal and recreational marijuana use and allow households to grow as many as six plants. After telling the BBC in December that “if you fight a war for forty years and don’t win, you have to sit down and think about other things to do that might be more effective,” Colombian president Juan Manuel Santos legalized medical marijuana by decree. In November, the Mexican Supreme Court elevated the debate to a new plane by ruling that the prohibition of marijuana consumption violated the Mexican Constitution by interfering with “the personal sphere,” the “right to dignity,” and the right to “personal autonomy.” The Supreme Court of Brazil is considering a similar argument.
Depending on how the issue is framed, legalization of all drugs can appeal to conservatives, who are instinctively suspicious of bloated budgets, excess government authority, and intrusions on individual liberty, as well as to liberals, who are horrified at police overreach, the brutalization of Latin America, and the criminalization of entire generations of black men. It will take some courage to move the conversation beyond marijuana to ending all drug prohibitions, but it will take less, I suspect, than most politicians believe. It’s already politically permissible to criticize mandatory minimums, mass marijuana-possession arrests, police militarization, and other excesses of the drug war; even former attorney general Eric Holder and Michael Botticelli, the new drug czar — a recovering alcoholic — do so. Few in public life appear eager to defend the status quo.
A few prior related posts:
- Just what is Donald Trump's position now on modern marijuana reforms (and the modern drug war)?
- "Make No Mistake: Hillary Clinton is a Drug Warrior"
- Shouldn't front-runner Donald Trump be asked about drug war and federal marijuana policies at GOP debate?
Wednesday, March 16, 2016
"Why many black voters don't blame Hillary for tough-on-crime laws"
The title of this post is the headline of this notable Christian Science Monitor article from earlier this week which strikes me as especially timely given that Hillary Clinton's success in the most recent state primaries would seem to put her on a near-certain path to a Prez candidate nomination. Here are excerpts from the lengthy piece:
In the late 1980s and early 1990s, [gang violence and open-air drug dealing] was the everyday reality in African-American neighborhoods around the country. It was in this context that black political leaders, under pressure from their communities, pleaded for the federal government to address the drug problem. The now infamous response from the federal government was a series of bipartisan “tough on crime” laws that, instead of just cracking down on drugs and violent crime as intended, filled the country’s prisons to a breaking point, disproportionately with young black men.
Now amid bipartisan efforts to undo many of these laws, and the rise of a new generation of civil rights activists, this history has created a strange dissonance. Black Lives Matter activists have criticized Hillary Clinton, the front-runner for the Democratic nomination, for supporting these tough-on-crime policies as first lady in the ’90s. But Mrs. Clinton has ridden overwhelming support from black voters to a commanding lead in the Democratic primaries. Earlier this month, the urban black vote helped her edge out a victory in the Massachusetts primary over challenger Sen. Bernie Sanders.
“If you read some intellectuals on the left, they’d suggest there should be a grudge against the Clintons, but I think the primary results show there isn’t a grudge at all,” says Michael Fortner, a professor of urban studies at the City University of New York and author of the book “Black Silent Majority.”
Part of the reason, he notes, is that black communities are aware that for decades they were some of the loudest advocates for tough drug laws. Tough-on-crime policies, he adds, “weren’t something that just happened to black people, that were imposed on the black community…. Political leaders, mayors, and pastors played an important role in pushing for these policies.”
Another reason, he says, is that most black voters aren’t just concerned about criminal justice policy, past or present. “They’re also, like everybody else, concerned about paying their bills, they’re concerned about good schools, concerned about achieving the American dream,” he says....
“I think the African-American community, like Hillary Clinton, they’ve had to rethink their approach,” says Thomas Whalen, an associate professor of social sciences at Boston University. “And you have to. In a so-called drug war, you can’t be rigid in your position and hope to be ultimately successful — you have to be as flexible as possible based on the conditions on the ground.”...
For many decades, however, drugs were a priority. As early as June 1970, for example, Ebony magazine published an article titled: “Blacks declare war on dope.” In 1986, 16 of 19 African-American members of the House co-sponsored President Reagan’s Anti-Drug Abuse Act. And eight years later, 22 members of the Congressional Black Caucus voted for Bill Clinton’s 1994 crime bill that boosted funding to police, expanded the death penalty, and created the “three strikes” sentencing law.
Tuesday, March 15, 2016
"Is Proposition 47 to Blame for California's 2015 Increase in Urban Crime?"
The question in the title of this post is a question a lot of persons who are following the broader national debate over sentencing reform are asking (as highlighted via this post by Bill Otis over at Crime & Consequences). It is also the title of this new research report authored by a researcher at the Center on Juvenile and Criminal Justice. Here is the full textual of the introduction to the eight-page CJCJ report:
In November 2014, nearly 60 percent of California’s electorate voted to pass Proposition 47. This proposition made substantial sentencing reforms by reducing certain nonviolent, non-serious offenses, such as minor drug possession and shoplifting, from felonies to misdemeanors (CJCJ, 2014). Because the changes made by the new law applied retroactively, incarcerated people serving felony sentences for offenses affected by Proposition 47 were eligible to apply for resentencing to shorten their sentences or to be released outright. Those who already completed felony sentences for Proposition 47 offenses could also apply to change their criminal records to reflect the reforms.
Critics of Proposition 47 contended it would increase crime by releasing those convicted of dangerous or violent felonies early (see “Arguments Against Proposition 47,” 2014). Opponents also suggested that reducing the severity of sentences for certain felonies would fail to deter people from committing crimes or completing court-ordered probation requirements.
In the initial months following the passage of Proposition 47, California’s jail population dropped by about 9,000 between November 2014 and March 2015 (the most recent date for which county jail figures are available at this time) (BSCC, 2016). State prisons reported over 4,500 releases attributed to Proposition 47 (CDCR, 2016), for a total incarcerated population decline of more than 6 percent — a substantial decrease. Similar to the initial year after Public Safety Realignment took effect, January-June 2015 saw general increases in both violent and property crime in California’s cities with populations of 100,000 or more (Table 1). During this period, homicide and burglary showed slight declines, while other Part I violent and property offenses experienced increases.
Is Proposition 47 to blame for the increases in reported urban crimes? This report tests this question by comparing changes in crime rates, from January–June 2014 and January–June 2015, in California’s 68 largest cities to changes in: (a) county jail populations and (b) Proposition 47-related discharges and releases from prison to resentencing counties.
March 15, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, National and State Crime Data, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (4)
Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014
Regular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been. Here are just a few of my prior related posts on this front:
- Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Extraordinary review of messiness of Prez Obama's clemency push
- Circa mid-2015, Clemency Project 2014 will go down as an abject failure if it does not submit more petitions before 2016
Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:
In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.
Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.
More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.
Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....
A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.
But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...
The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....
Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.
So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.
A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."
This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....
Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.
Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.
Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.
Monday, March 07, 2016
"Did Nancy Reagan's War on Drugs Backfire?"
The question in the title of this post is the headline of this intriguing new NBC News commentary by Tony Dokoupil. For reasons I will explain after an excerpt, I think this question is an unfair variation on the "When did you stop beating your wife?" question. But first, here are some excerpts:
It's one of the risks of a long and busy life: the threat that society will change its mind about your most important work. That happened to Nancy Reagan, the former first lady who died on Sunday at 94. President Ronald Reagan's wife and closest adviser defined the drug panic of the 1980s, coining the phrase "Just Say No" and supporting her husband's rampaging war on drugs. She often singled out marijuana as a special scourge, accusing dealers of taking "the dream from every child's heart."
But such positions have since slipped into disrepute in recent years, rejected even by many fellow Republicans. Nearly half the country has tried marijuana, meanwhile, and legal sales are booming in four states and counting. Criminal justice reform, including reducing sentences for nonviolent drug convictions, has been a point of discussion on both sides of the 2016 presidential campaign.
Nancy Reagan never publicly recanted or so much as commented on her starring role in the drug war. But with a look back at the origins of her and her husband's hardline policies, it's possible to trace the arc of one of America's most famous failures.
Ronald Reagan, eyeing a challenge to President Jimmy Carter, seemed to know that an attack on marijuana would tap into a growing displeasure with wayward teens, slack productivity and a society of apathetic Carter voters. So in a major radio address in 1979 Reagan revealed what "science now knows," including the dubious "scientific facts" that smoking dope leads to cancer, sterility and "irreversible effects on the mental processes." Never mind that the National Academy of Sciences had endorsed the idea of decriminalizing marijuana, finding "no convincing evidence" of its harmful effects.
The drug became an enemy of promise, the explanation for everything. Why is your teenager refusing to cut the lawn? Marijuana. Why is your industry falling behind Japan's? Marijuana. Why do you have to lock your door at night? Hard drugs — which start with marijuana.
Nancy Reagan emerged as the most effective carrier of her husband's message. She focused on almost nothing else during his presidency, beginning with an informal press conference aboard Air Force One in early 1982. She told the press that drugs had become an epidemic. Then she made her first stop in a cross-country swing, an open meeting of Straight Inc., a youth rehabilitation program in Florida....
Later on the same tour, during a visit to an elementary school in Oakland, California, she coined her famous phrase. An elementary school student asked her what he should do if anyone ever offered him pot. "Just say no!" she said.
Experts pounced. The slogan was one of the most unsophisticated anti-drug messages of all time. It suggested that drugs are evil, but you can quit them at any time. Yet the phrase served a purpose. It created what Nancy proudly called "an atmosphere of intolerance." Other politicians compared drug dealers to vampires, murderers and traitors. And people began to associate pot with waste and dropouts....
In June 1982, Ronald Reagan appeared in the White House garden to officially declare a war on drugs. "We're taking down the surrender flag that has flown over so many drug efforts; we're running up a battle flag. We can fight the drug problem, and we can win. And that is exactly what we intend to do," he said. Marijuana was the only drug to merit specific mention.
Regular readers surely know that I think demonizing marijuana was a mistake as part of the Reagan era "war on drugs." But I actually think Nancy Reagan's "just say no" voice in all this was not nearly as pernicious as this commentary is trying to suggest. Indeed, though an unsophisticated anti-drug message, the "just say no" mantra, in my view, continues to highlight and emphasize the fundamental individual reality at the base of many drug problems even though illegal drug use and abuse includes a lot more complicated issues.
The real problems resulting from the failed American war on drugs, in my view, did not at all emerge from Nancy Reagan urging individuals to just say no to drugs; the real problems flowed from waging the drug war with massive investments in big-government criminal justice system that too heavily invested in cops and cells rather than classrooms and counseling.
Notable split Sixth Circuit ruling on (suspect) limits of retroactive guideline reductions
A split Sixth Circuit panel handed down today an interesting little sentencing opinion in US v. Taylor, No. 15-5930 (6th Cir. March 7, 2016) (available here). Actually, the majority opinion is, according to the dissent, more frustrating than interesting beause that opinion held that a district court, when reducing a sentence based on the retroactive reduced drug guideline, lacked any added discretion "to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance."
Notably, federal prosecutors in this Taylor case agreed with the defendant (and the dissent) that the district court should have authority to take into account during sentence modification additional mitigating factors. But the district court concluded that it lacked this authority, and the majority opinion on Taylor affirmed this conclusion. Judge Merritt expressed his frustration with this view in a short dissent that includes these points:
The mathematical percentage estimated for “substantial assistance” almost five years ago at the original sentencing is not a scientific fact, just a guess or speculation, and a new reduction upon resentencing that is “comparably less” (using the Guideline language) does not forbid a new sentence which takes into account such intangible factors as defendant’s additional assistance after the original sentence, her rehabilitation, as well as collateral damage to her family and other similar factors. It does not forbid a reassessment of what has happened in the last five years. Both the prosecutor and the defendant agreed that the sentence should not be limited to a nineteen percent reduction but have agreed to a thirty-three percent reduction, and there is no indication that Judge Jordan in the court below would not agree that this would be a more just sentence. He thought only that the law did not give him the authority to impose the lower sentence....
I do not see why we must continue to take away from the sentencing judge the authority to use his or her best judgment in determining the sentence. For these reasons and also for the policy reasons stated by Justice Stevens in his dissenting opinion in Dillon v. United States, 130 S. Ct. 2683, 2694-2705 (2010), I would remand to the district court for resentencing with the instruction that the district court is not bound by the nineteen percent reduction used years ago. Times change. The law has changed. Our culture is changing its views about how long we should put people behind bars. There is no good reason I can see that we should not allow the district judge to use his best judgment here and err on the side of mercy while at the same time reducing the government’s costs of incarceration.
Monday, February 29, 2016
Iran reportedly wages the "war on drugs" by executing the "entire adult male population" of a village!?!?!
There is much talk in the United States about causalities of all sorts from the tough ways in which US governments use criminal justice powers of all sorts to wage a "war on drugs." But this FoxNews article reports on Iran waging the war with a whole new type of extreme powers. The piece is headlined "Iran reportedly executes every adult man in one village for drug crimes," and here are the stunning details:
The entire adult male population of a village in southern Iran was executed for drug offenses last week as part of a country-wide crackdown on trafficking, state media report. Iran’s vice-president for women and family affairs, Shahindokht Molaverdi, revealed the news in an interview with the Mehr News agency last week, but did not say when or where the executions took place, or how many people were killed.
“We have a village in Sistan and Baluchestan province where every single man has been executed,” she said, according to The Guardian. “Their children are potential drug traffickers as they would want to seek revenge and provide money for their families. There is no support for these people.”
Molaverdi said President Hassan Rouhani’s government has brought back previously-axed family support programs. “We believe that if we do not support these people, they will be prone to crime, that’s why the society is responsible for the families of those executed,” she said.
Human rights groups denounced the executions. “The apparent hanging of every man in one Iranian village demonstrates the astonishing scale of Iran’s execution spree,” Maya Foa, from the anti-death penalty group Reprieve, told The Guardian. “These executions — often based on juvenile arrests, torture, and unfair or nonexistent trials — show total contempt for the rule of law, and it is shameful that the UN and its funders are supporting the police forces responsible.”...
The Islamic Republic hanged 753 people in 2014, more than half of whom were convicted of drug-related offenses, the group said. In 2015, nearly 700 people were executed in Iran in the first half of the year alone, it added. The mass executions have led activists to call on the U.N. Office on Drugs and Crime to stop funding the Iranian government’s anti-narcotics campaign until Tehran ends the use of capital punishment for such offenses, The Guardian reports.
Candidly, I have a hard time wrapping my head around the notion that the Iranian government, in order to try to stop drug trafficking in the name of helping "women and family affairs," would execute the entire adult male population of a village in southern Iran (and then, apparently, will provide government support for the families of those executed). But, absent further reports that this story is inaccurate, I have to conclude that Iran believes no punishment is off-the-table and unjustified when trying to combat the scourge that is drug use and abuse.
Sunday, February 28, 2016
"With Marijuana Legal, Why Are People Still Doing Life For Weed?"
Thie question in the title of this post is the headline of this article from The Kind (as well as a question that really does not have a satsfactory answer). Here are excerpts:
At least 30 people are currently serving life without parole for non-violent marijuana-related offenses. Save extraordinary events, they will die in prison. Overturning a law does not exonerate the people who were convicted of breaking the law when it was in effect. This means that even if marijuana is legalized tomorrow, those serving time for marijuana-related offenses will not be released.
“Most people don’t believe it,” says Beth Curtis, founder of Life for Pot, an organization that spotlights people who are serving life without parole for non-violent marijuana-only offenses.
One person who is scheduled to remain in jail until they die is Curtis’s brother, John Knock. “Twenty years ago I received a phone call informing me that my youngest brother had been indicted for a marijuana conspiracy in Florida,” Curtis explains on her site. “Our lives have never been the same.”...
In 2008 she launched LifeForPot.com, which currently features 30 or so inmates with life or de facto life sentences (e.g., someone who is 50 years old and gets 50 years). Most of Curtis’s advocacy takes place offline, primarily through writing and sending information about individuals to congress, congressmen, and various groups that might take up the cause. “Actually a lot of people have,” she says. “Now when you Google ‘life for pot’, lots of stuff comes up. When I first started, it was just my site.”...
Without retroactive legislation, inmates serving life without parole for weed can only be released through clemency, in the form of a pardon or sentence commutation from the president (on the federal level) or from the governor (on the state level). (Group pardons are rare, but not entirely unprecedented.)
Out of the 95 sentence commutations granted by President Barrack Obama in December, two were serving life for marijuana-related crimes: Billy Dekel and Charles Cundiff.
Beth Curtis says she’s been advocating for both of them for years and plans to visit them once they’re out. Another inmate on Curtis’s radar, Larry Duke, was freed last March under a compassionate release program for inmates over 65. While Curtis was elated by the three inmates’ release, she notes that Obama would need to seriously ramp up the number of commutations to make a meaningful dent in the population.
“These people need clemency to get any relief,” she says. “And for the old guys, it’s kind of important that it happens pretty soon. Their runway is a lot shorter. Not that the younger people shouldn’t be released also, but dying in prison is a particularly horrendous thought. “Obama said that through clemency there would be thousands released,” Curtis adds. “I hope that that’s true. I hope and pray that that’s true.”
Cross-posted at Marijuana Law, Policy and Reform