Friday, September 13, 2013
"After Kerlikowske, What’s Next for America’s ‘War on Drugs’?"
The title of this post is the headline of this lengthy new commentary by Ted Gest over at The Crime Report. Here are excerpts from a piece that draws in large part from a notable new article on the topic appearing in Volume 42 of Crime and Justice:
“No one is happy with American drug policy,” Peter Reuter of the University of Maryland declares in a new overview of a debate that hasn’t changed dramatically in the last three decades. Reuter’s assessment (“Why has American Drug Policy Changed so Little in 30 years”) appears in a sweeping review of U.S. criminal justice published this month: Crime and Justice in America, Volume 42, 1975-2025, University of Chicago Press, 2013)
With the U.S. government awaiting a new “drug czar” — President Barack Obama has nominated current National Drug Control Policy Director R. Gil Kerlikowske to head the federal border protection agency — The Crime Report takes a look at Reuter’s views in some detail. The following summarizes Reuter’s principal arguments, but also includes new material not included in his original essay. The entire book can be ordered here....
Reuter makes [these] major assertions:
Marijuana must be treated separately as a social and criminal justice problem. It hardly touches the central problem of American criminal justice — the high incarceration of minorities — nor does it cause significant health and social harms.
Harm reduction, the idea that governments should pay attention to the harmfulness of drug use (not just to the number of users of drugs) is a big idea that has importantly changed drug policy in much of the Western world. In the United States, among the core harm reduction programs, only methadone maintenance has been accepted.
Legalization, the idea that drugs such as cocaine and heroin should be treated like alcohol and be made available legally under substantial regulatory restrictions, deserves separate discussion. Though Reuter argues it has no appeal to the general public, it attracts a great deal of interest from the educated elite and from some Latin American presidents.
The prevalence of drug use, the most widely reported measure of drug problems, is not a good target for drug policy. Policy should be oriented toward reducing violence, dysfunction, and disease related to drug use and to reducing the use of incarceration and reducing racial disparities in incarceration....
Contrary to the assumptions of many policymakers, there is very little evidence that enforcement can raise prices or reduce availability, the mechanisms through which it might reduce the prevalence of use. During a period of massively increased enforcement intensity (1980-2008), the retail prices of heroin and cocaine both fell about 70 percent.
If drug policy cannot affect prevalence, what can it do? We do know, writes Reuter, that bad policy choices can make drug use, drug distribution and production more harmful. For example, if the police choose to use possession of prohibited syringes as the basis for targeting heroin injectors, they may accelerate the spread of HIV....
The drug problem changes in unforeseen ways with occasional epidemics that are unpredictable in their occurrence and magnitude. For example, the use of diverted prescription drugs constitutes a significant and disturbing public health problem.
Thursday, September 12, 2013
US Sentencing Commission releases more documents in its great new "Quick Facts" seriesI am so very pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of documents as part of its terrific new series of reader-friendly "Quick Facts" publications. (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.)
As I have said before, I think this is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these latest two publications in the series:
- Marijuana Trafficking Offenses (September 2013)
- Methamphetamine Trafficking Offenses (September 2013)
September 12, 2013 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack
Monday, September 09, 2013
What questions should be central to Senate Judiciary Committee Hearing on "Conflicts between State and Federal Marijuana Laws"?Though perhaps overshadowed by foreign policy issues these days, on Tuesday September 10, 2013 at 2:30pm, as detailed at this official webpage, there will be a hearing before the United States Senate Committee on the Judiciary on “Conflicts between State and Federal Marijuana Laws.” Here is the official agenda/hearing list:
- The Honorable James Cole, Deputy Attorney General, U.S. Department of Justice
- The Honorable John Urquhart, Sheriff, King County [Washington] Sheriff’s Office
- Jack Finlaw, Chief Legal Counsel Office of [Colorado] Governor John W. Hickenlooper
- Kevin A. Sabet, Ph.D., Co-founder and Director, Project SAM Director, Drug Policy Institute, University of Florida
I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the next 24 hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it at Marijuana Law, Policy and Reform).
Here at The Weed Blog one can see a whole bunch of very hard questions that might be asked of DAG Cole concerning federal policies and practices, which were set forth in a letter sent by the pro-reform group California NORML to Senator Dianne Feinstein. I doubt many of these questions will be asked verbatim, but they provide an effective pro-reform perspectives on various ways in which state and federal marijuana laws, policies and practices operate at cross-purposes.
As the title of this post suggests, I am eager for readers of this blog to indicate what kinds of questions they might be most eager to see addressed in tomorrow's scheduled Senate hearing.
Cross-posted at Marijuana Law, Policy and Reform.
Wednesday, September 04, 2013
How could and should folks view (or "spin") latest results from national survey on drug use and health?
Released today were the findings from the 2012 National Survey on Drug Use and Health by the U.S. Department of Health and Human Services. Helpfully, thanks to our modern digital world, everyone can look at the full reported results from HHS here and a collections of "highlights" at this link. Or one can look at these headlines from some early major media reports:
- From ABC News here, "Drug Use Drops for America's Youth, Rises in the Over 50 Crowd"
- From CBS News here, "New US drug survey: Marijuana and heroin increasing"
- From The Hill here, "Federal survey shows heroin use up significantly"
- From USA Today here, "More Americans are using marijuana"
As these headlines highlight, there are lots of ways to view the latest survey data. (Moreover, because the stigma associated with marijuana use has declined with evolving laws and policy perspectives, I cannot help but wonder if the measured increase in reported use of marijuana might, at least to some degree, reflect an increase in the willingness of persons to admit to marijuana use rather than an actual increase in use.)
Usefully, because the 2012 National Survey on Drug Use and Health also explores alcohol and tobacco use, as well as reported rates of "substantance dependence/abuse," there are a number of notable (though less reported) seemingly positive stories emerging from this latest government report concerning drug use and abuse over the last decade. Specifically (and quoting now directly from the HHS highlights):
- Between 2002 and 2012, past month use of any tobacco product among persons aged 12 or older decreased from 30.4 to 26.7 percent... [and] the rate of past month tobacco use among 12 to 17 year olds declined from 15.2 percent in 2002 to 8.6 percent in 2012.
- Between 2002 and 2012, the percentage of youths aged 12 to 17 with substance dependence or abuse declined from 8.9 to 6.1 percent.
- The number of past year cocaine initiates declined from 1.0 million in 2002 to 639,000 in 2012. The number of crack cocaine initiates declined from 337,000 to 84,000 during this period.
- The rate of current marijuana use among youths aged 12 to 17 decreased from 8.2 percent in 2002 to 6.7 percent in 2006, remained unchanged at 6.7 percent in 2007 and 2008, then increased to 7.9 percent in 2011. The rate declined to 7.2 percent in 2012.
- Past month, binge, and heavy drinking rates among underage persons declined between 2002 and 2012. Past month alcohol use declined from 28.8 to 24.3 percent, binge drinking declined from 19.3 to 15.3 percent, and heavy drinking declined from 6.2 to 4.3 percent.
I am inclined to ultimately view the data emerging from 2012 National Survey on Drug Use and Health as evidence that, all things considered, Americans are somewhat healthier now than we were a year ago and a lot healthier now than we were a decade ago. But most of the headlines I see from the media seem to be emphasizing reported increases in the use of certain substantances rather than reported decreases in the use of other substances.
Sunday, September 01, 2013
Assembling reactions of those most critical of AG Holder's announcement on federal pot policy
In these comments to a post about the recent announcement by Attorney General Eric Holder concerning federal marijuana policy, former federal prosecutor Bill Otis asserted that "what the AG is actually saying is that nothing is changing" and that the announcement was really no big deal. But, as evidenced by some very negative reactions by some drug war supporters, not everyone shares Bill's perspective.
This Huffington Post piece, for example, reports that police groups "that include sheriffs, narcotics officers and big-city police chiefs slammed Attorney General Eric Holder in a joint letter Friday [available here], expressing 'extreme disappointment' at his announcement that the Department of Justice would allow Colorado and Washington to implement state laws that legalized recreational marijuana for adults." Here is more via the Huff Post report:
"It is unacceptable that the Department of Justice did not consult our organizations -- whose members will be directly impacted -- for meaningful input ahead of this important decision," the letter reads. "Our organizations were given notice just thirty minutes before the official announcement was made public and were not given the adequate forum ahead of time to express our concerns with the Department’s conclusion on this matter. Simply 'checking the box' by alerting law enforcement officials right before a decision is announced is not enough and certainly does not show an understanding of the value the Federal, state, local and tribal law enforcement partnerships bring to the Department of Justice and the public safety discussion."
The missive was signed by the Major County Sheriffs’ Association, the National Sheriffs’ Association, the Association of State Criminal Investigative Agencies, the International Association of Chiefs of Police, the National Narcotic Officers Associations’ Coalition, the Major Cities Chiefs Police Association and the Police Executive Research Forum. Law enforcement, the police groups said, "becomes infinitely harder for our front-line men and women given the Department’s position."
In addition, this round-up from StoptheDrugWar.org reports on some other notable negative reactions from "opponents of marijuana law reform":
Cross-posted at Marijuana Law, Policy and Reform.
"Decades from now, the Obama administration will be remembered for undoing years of progress in reducing youth drug use in America," Dr. Paul Chabot of the Coalition for a Drug Free California said in a statement. "This president will be remembered for many failures, but none as large as this one, which will lead to massive youth drug use, destruction of community values, increased addiction and crime rates."...
"We can look forward to more drugged driving accidents, more school drop-outs, and poorer health outcomes as a new Big Marijuana industry targeting kids and minorities emerges to fuel the flames," warned former US Rep. Patrick Kennedy in a statement issued by Project SAM (Smart About Marijuana), a neo-prohibitionist organization that couches its policy aims amid public health concerns.
"This is disappointing, but it is only the first chapter in the long story about marijuana legalization in the US. In many ways, this will quicken the realization among people that more marijuana is never good for any community," said Project SAM cofounder and director Kevin Sabet....
The taxpayer-funded Community Anti-Drug Coalitions of America (CADCA) also weighed in with disappointment, doom, and gloom. "The Department of Justice announced that it will not sue to block the implementation of laws in Colorado and Washington that legalize marijuana, despite the fact that these laws are in conflict with federal law," said CADCA head Gen. Arthur Dean in a statement. "CADCA and its more than 5,000 community coalitions across the country have been anticipating a response from the administration that would reaffirm the federal law and slow down this freight train. Instead, this decision sends a message to our citizens, youth, communities, states, and the international community at large that the enforcement of federal law related to marijuana is not a priority."
"The fact remains that smoked marijuana is not medicine, it has damaging effects on the developing adolescent brain, and can be addictive, as evidenced by the fact that 1 in 6 youth who use it will become addicted," Dean claimed, adding that the country is in "a growing crisis" as marijuana law reforms take hold. "The nation looks to our Justice Department to uphold and enforce federal laws. CADCA is disappointed in the Justice Department's decision to abdicate its legal right in this instance. We remain gravely concerned that we as a nation are turning a blind eye to the serious public health and public safety threats associated with widespread marijuana use."
Friday, August 23, 2013
"Vice Crimes and Preventive Justice"The title of this post is the title of this notable new paper by Stuart Green now available via SSRN. Especially as I spend this semester discussing prohibition of various substances in my conjunction with teaching a marijuana law seminar (and working on this related blog), I am definitely adding this piece to my weekend reading list. Here is the abstract:
This symposium contribution offers a reconsideration of a range of "vice crime" legislation from late 19th and early 20th century American law, involving matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic (in the sense that they criminalize conduct solely or primarily because it is intrinsically wrong or sinful and not because of its negative effect on anyone) and paternalistic (in the sense that they limit persons' liberty or autonomy supposedly for their own good); and it was only later, in the late 20th century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms.
This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales -- similar to those that underlie modern, technocratic, "preventive justice" legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism.
Tuesday, August 20, 2013
US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinionLong-time readers know that big federal sentencing news can often come from the heartland in the form of potent lengthy opinions by US District Judge Mark Bennett. His latest important sentencing work, which a number of helpful readers have made sure I would not miss, comes in US v. Young, No. 5:12-cr-04107 (D. Iowa Aug. 16, 2013) (available for download below). I could say much about so many notable passages in this 75-page Young opinion (which includes 20+ pages of data-rich appendices at the end), but I will be content to let the first few paragraph highlight why this opinion is a must-read for all who follow the federal sentencing system:
This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.
Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.
These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency. See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”). Attorney General Holder’s August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.
August 20, 2013 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (47) | TrackBack
Thursday, August 15, 2013
"White women sent to Ohio prisons in record numbers, reports say"The title of this post is the headline of this notable new press report about some notable criminal justice data coming out of the Buckeye State. Here are the details:
Amanda Lane is the face of Ohio's fastest-growing prison trend. Lane, 28, is white and from rural Pickaway County, where she was convicted of drug charges and sentenced to 18 months in prison. The state's prisons are filling up with people just like her, a surge that has shocked researchers and experts.
White women, many from rural Ohio, are the fastest growing population in Ohio prisons. In fact, they made up 80 percent of the female felons sentenced to prison between June 30, 2012, and July 1, or fiscal year 2013, according to state records.
Compare that to fiscal year 2003, when white women sentenced to prison made up 55 percent of females in prison. In 1998, they made up 43 percent, according to state records.
On June 1, there were 3,974 female inmates in Ohio prisons; 2,962 were white, or nearly 75 percent. Nationally, the numbers of white women sentenced to prison rose 48 percent from 2000 to 2009, according to the Sentencing Project, a Washington, D.C., think tank. "It's a major shift," said Steve Van Dine, chief of the bureau of research for the Ohio Department of Rehabilitation and Correction, speaking about the trend here. "It's rather dramatic."
Researchers say it is clear where many of the the numbers are coming from: rural Ohio. "That's the thing that jumped out at me," said James Austin, a national researcher who studied women in Ohio prisons through a grant from the U.S. Justice Department. "The numbers weren't coming from Cleveland or Columbus, but from predominantly white, rural counties."...
In the men, the percentages have changed, as the number of whites sentenced to prison has grown. In June, there are 22,880 white men in prison, while there are 21,864 black men. But those numbers are not as dramatic as the shifts seen in women felons.
"I tend to believe that judges in the more rural counties tend to sentence people more harshly," said Mike Huff, a former assistant Athens County prosecutor who now handles criminal defense work. "In rural counties, it is a big deal when someone gets caught making methamphetamine or selling drugs. People talk about it. They don't want that stuff around. Small newspapers and radio stations report it. It's big news, and judges realize that."
In a 2006 report for Ohio prisons, Austin found that "the increase in admissions has been largely limited to white females who tend to come from the more rural and suburban areas of the state. Compared to males, female admissions tend to be more white, older convicted of a non-violent crime, have short sentences (and) no prior incarcerations."...
Austin's report said one of the key reasons for the growth of white women in prison is that smaller, rural counties have a limited number of community-based programs for women, meaning judges have few programming options in sentencings. "In smaller counties, there are, generally, fewer programs for women," Austin said in an interview.
Wednesday, August 14, 2013
Lots of (mostly positive) reactions to AG Holder's big sentencing speech
In the last 48 hours, I have seen lots and lots of notable reactions and commentary in the wake of Attorney General Eric Holder's remarks to the ABA calling for significant sentencing reforms. Nearly all have been relatively positive, and I believe I have seen more expressions of concern that AG Holder did not go far enough than that he went too far in urging criminal justice reforms and in changing some DOJ policies. Here is a sampling of some of the more high-profile and/or substantial discussions I have seen:
From the Baltimore Sun here, "Minimal reform on mandatory sentencing"
From the Dallas Morning News here, "Holder takes right approach on out-of-control drug war"
- From the New York Times here, "Smarter Sentencing"
From the Washington Post here, "Welcome drug prosecution reform still needs Congress’s help."
From Nancy Hoppock at Constitution Daily here, "Explaining the DOJ’s new policy on drug crimes and mandatory minimums"
- From Walter Palvo at Forbes here, "Despite DOJ Announcement, The Federal Prison Population Will Grow"
From Jacob Sollum at Reason here, "Eric Holder's Prison Break: The attorney general's criticism of mass incarceration and mandatory minimums is belated but welcome."
From Emily Bazelon at Slate here, "Not-Quite-So-Mandatory Minimums: Eric Holder’s plan to lower sentences for drug offenders isn’t ambitious enough"
UPDATE: I put together this op-ed for the Los Angeles Times explaining my basic reactions to the Attorney General speech and the paper gave it this title: "Atty. Gen. Holder plays catch-up on criminal justice: He should do more to seize the sentencing reform moment." Here is how it concludes:
Before a new course can be set, the criminal justice ship has to navigate away from the old "get-tough" course, and that won't be easy. So it's perhaps understandable that Holder is, for now, talking only about the need for bold steps rather than taking them. But because the political and economic winds (not to mention the moral ones) are all starting to blow in the same direction on federal sentencing reform, the administration shouldn't wait too long before sailing full speed ahead.
Monday, August 12, 2013
Some sentencing-related highlights from AG Holder's remarks today to the ABAI am back on line, and now able to link to and provide some extensive excerpts from Attorney General Eric Holder's high-profile remarks earlier today at the Annual Meeting of the American Bar Association's House of Delegates. Everyone should make time to read AG Holder's remarks in full, but below I will try to excerpt those portions likely to be of greatest interest and import for sentencing fans. Here goes (with apologies at how much text is excerpted, and with some of my very favorite text in bold and even italics):
In so many ways, today’s ABA is reminding us that, although our laws must be continually updated, our shared dedication to the cause of justice — and the ideals set forth by our Constitution — must remain constant. It is this sense of dedication that brings me to San Francisco today — to enlist your partnership in forging a more just society. To ask for your leadership in reclaiming, once more, the values we hold dear. And to draw upon the ABA’s legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.
It’s time — in fact, it’s well past time – to address persistent needs and unwarranted disparities by considering a fundamentally new approach. As a prosecutor; a judge; an attorney in private practice; and now, as our nation’s Attorney General, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time — and our duty — to identify those areas we can improve in order to better advance the cause of justice for all Americans.
Even as most crime rates decline, we need to examine new law enforcement strategies —and better allocate resources — to keep pace with today’s continuing threats as violence spikes in some of our greatest cities. As studies show that six in ten American children are exposed to violence at some point in their lives — and nearly one in four college women experience some form of sexual assault by their senior year — we need fresh solutions for assisting victims and empowering survivors. As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective — and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach. And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate — not merely to warehouse and forget.
Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.
It’s clear — as we come together today — that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges. And it is well past time to implement common sense changes that will foster safer communities from coast to coast.
These are issues the President and I have been talking about for as long as I’ve known him — issues he’s felt strongly about ever since his days as a community organizer on the South Side of Chicago. He’s worked hard over the years to protect our communities, to keep violent criminals off our streets, and to make sure those who break the law are held accountable. And he’s also made it part of his mission to reduce the disparities in our criminal justice system. In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias. And in 2010, this Administration successfully advocated for the reduction of the unjust 100-to-1 sentencing disparity between crack and powder cocaine....
Over the next several months, the President will continue to reach out to Members of Congress from both parties — as well as governors, mayors, and other leaders — to build on the great work being done across the country to reduce violent crime and reform our criminal justice system. We need to keep taking steps to make sure people feel safe and secure in their homes and communities. And part of that means doing something about the lives being harmed, not helped, by a criminal justice system that doesn’t serve the American people as well as it should.
At the beginning of this year, I launched a targeted Justice Department review of the federal system — to identify obstacles, inefficiencies, and inequities, and to address ineffective policies. Today, I am pleased to announce the results of this review — which include a series of significant actions that the Department has undertaken to better protect the American people from crime; to increase support for those who become victims; and to ensure public safety by improving our criminal justice system as a whole. We have studied state systems and been impressed by the policy shifts some have made. I hope other state systems will follow our lead and implement changes as well. The changes I announce today underscore this Administration’s strong commitment to common sense criminal justice reform. And our efforts must begin with law enforcement.
Particularly in these challenging times — when budgets are tight, federal sequestration has imposed untenable and irresponsible cuts, and leaders across government are being asked to do more with less — coordination between America’s federal, state, local, and tribal law enforcement agencies has never been more important. It’s imperative that we maximize our resources by focusing on protecting national security; combating violent crime; fighting against financial fraud; and safeguarding the most vulnerable members of our society.
This means that federal prosecutors cannot — and should not —bring every case or charge every defendant who stands accused of violating federal law. Some issues are best handled at the state or local level. And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines — consistent with our national priorities — for determining when federal charges should be filed, and when they should not.
I’ve also issued guidance to ensure that every case we bring serves a substantial federal interest and complements the work of our law enforcement partners. I have directed all U.S. Attorneys to create — and to update — comprehensive anti-violence strategies for badly-afflicted areas within their districts. And I’ve encouraged them to convene regular law enforcement forums with state and local partners to refine these plans, foster greater efficiency, and facilitate more open communication and cooperation.
By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime “hot spots,” and pursuing new ways to promote public safety, deterrence, efficiency, and fairness — we in the federal government can become both smarter and tougher on crime. By providing leadership to all levels of law enforcement — and bringing intelligence-driven strategies to bear — we can bolster the efforts of local leaders, U.S. Attorneys, and others in the fight against violent crime....
Fifty years ago last March, this landmark ruling [in Gideon] affirmed that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one. Yet America’s indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met. To address this crisis, Congress must not only end the forced budget cuts that have decimated public defenders nationwide — they must expand existing indigent defense programs, provide access to counsel for more juvenile defendants, and increase funding for federal public defender offices. And every legal professional, every member of this audience, must answer the ABA’s call to contribute to this cause through pro bono service — and help realize the promise of equal justice for all.
As we come together this morning, this same promise must lead us all to acknowledge that — although incarceration has a significant role to play in our justice system —widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.
As a nation, we are coldly efficient in our incarceration efforts. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate — by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners. More than 219,000 federal inmates are currently behind bars. Almost half of them are serving time for drug-related crimes, and many have substance use disorders. Nine to 10 million more people cycle through America’s local jails each year. And roughly 40 percent of former federal prisoners — and more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers and often for technical or minor violations of the terms of their release.
As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens. Right now, unwarranted disparities are far too common. As President Obama said last month, it’s time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.
We also must confront the reality that — once they’re in that system — people of color often face harsher punishments than their peers. One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptable — it is shameful. It’s unworthy of our great country, and our great legal tradition. And in response, I have today directed a group of U.S. Attorneys to examine sentencing disparities, and to develop recommendations on how we can address them.
In this area and many others — in ways both large and small — we, as a country, must resolve to do better. The President and I agree that it’s time to take a pragmatic approach. And that’s why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America’s federal criminal justice system.
We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes. Some statutes that mandate inflexible sentences — regardless of the individual conduct at issue in a particular case — reduce the discretion available to prosecutors, judges, and juries. Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They — and some of the enforcement priorities we have set —have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive.
This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins. By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation — while making our expenditures smarter and more productive. We’ve seen that this approach has bipartisan support in Congress — where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders. Such legislation will ultimately save our country billions of dollars while keeping us safe. And the President and I look forward to working with members of both parties to refine and advance these proposals.
Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances — and who pose no threat to the public. In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons. Today, I can announce additional expansions to our policy — including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences. Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community. But considering the applications of nonviolent offenders — through a careful review process that ultimately allows judges to consider whether release is warranted — is the fair thing to do. And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.
Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs — such as drug treatment and community service initiatives — that can serve as effective alternatives to incarceration.
Our U.S. Attorneys are leading the way in this regard — working alongside the judiciary to meet safety imperatives while avoiding incarceration in certain cases. In South Dakota, a joint federal-tribal program has helped to prevent at-risk young people from getting involved in the federal prison system —thereby improving lives, saving taxpayer resources, and keeping communities safer. This is exactly the kind of proven innovation that federal policymakers, and state and tribal leaders, should emulate. And it’s why the Justice Department is working — through a program called the Justice Reinvestment Initiative — to bring state leaders, local stakeholders, private partners, and federal officials together to comprehensively reform corrections and criminal justice practices.
In recent years, no fewer than 17 states — supported by the Department, and led by governors and legislators of both parties — have directed funding away from prison construction and toward evidence-based programs and services, like treatment and supervision, that are designed to reduce recidivism. In Kentucky, for example, new legislation has reserved prison beds for the most serious offenders and re-focused resources on community supervision and evidence-based alternative programs. As a result, the state is projected to reduce its prison population by more than 3,000 over the next 10 years — saving more than $400 million.
In Texas, investments in drug treatment for nonviolent offenders and changes to parole policies brought about a reduction in the prison population of more than 5,000 inmates last year alone. The same year, similar efforts helped Arkansas reduce its prison population by more than 1,400. From Georgia, North Carolina, and Ohio, to Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. Let me be clear: these measures have not compromised public safety. In fact, many states have seen drops in recidivism rates at the same time their prison populations were declining. The policy changes that have led to these welcome results must be studied and emulated. While our federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year.
Clearly, these strategies can work. They’ve attracted overwhelming, bipartisan support in “red states” as well as “blue states.” And it’s past time for others to take notice.
I am also announcing today that I have directed every U.S. Attorney to designate a Prevention and Reentry Coordinator in his or her district — to ensure that this work is, and will remain, a top priority throughout the country. And my colleagues and I will keep working closely with state leaders, agency partners, including members of the Federal Interagency Reentry Council – and groups like the American Bar Association — to extend these efforts.
In recent years, with the Department’s support, the ABA has catalogued tens of thousands of statutes and regulations that impose unwise and counterproductive collateral consequences — with regard to housing or employment, for example — on people who have been convicted of crimes. I have asked state attorneys general and a variety of federal leaders to review their own agencies’ regulations. And today I can announce that I’ve directed all Department of Justice components, going forward, to consider whether any proposed regulation or guidance may impose unnecessary collateral consequences on those seeking to rejoin their communities.
The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime. But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.
Ultimately, this is about much more than fairness for those who are released from prison. It’s a matter of public safety and public good. It makes plain economic sense. It’s about who we are as a people. And it has the potential to positively impact the lives of every man, woman, and child — in every neighborhood and city — in the United States. After all, whenever a recidivist crime is committed, innocent people are victimized. Communities are less safe. Burdens on law enforcement are increased. And already-strained resources are depleted even further.
Today — together — we must declare that we will no longer settle for such an unjust and unsustainable status quo. To do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation. Instead, we must recommit ourselves — as a country — to tackling the most difficult questions, and the most costly problems, no matter how complex or intractable they may appear. We must pledge — as legal professionals — to lend our talents, our training, and our diverse perspectives to advancing this critical work. And we must resolve — as a people — to take a firm stand against violence; against victimization; against inequality — and for justice.
This is our chance — to bring America’s criminal justice system in line with our most sacred values. This is our opportunity — to define this time, our time, as one of progress and innovation. This is our promise —to forge a more just society.
And this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers: to open a frank and constructive dialogue about the need to reform a broken system. To fight for the sweeping, systemic changes we need. And to uphold our dearest values, as the ABA always has, by calling on our peers and colleagues not merely to serve their clients, or win their cases — but to ensure that —in every case, in every circumstance, and in every community — justice is done.
August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack
More reporting on (and now seeking reactions to) AG Holder's big sentencing speech
I am about to head off-line for the next few hours, and the conspiracy theorist in me lead me to think that DOJ has been reading my e-mail and that AG Eric Holder specifically decided to give his big sentencing speech to the ABA exactly when he knew I would be unable to blog about it. Man, those socialist-fascists running this administration sure our sneaky!
Jokes aside, today's Holder speech is clearly a big deal for a bunch of reasons, and I am pleased to see that the New York Times already has up this new lengthy story based on its text, now running under the headline "Justice Dept. Seeks to Curtail Stiff Drug Sentences." Here are some more details:
Of course, the devil (and the real impact of all this) will be in the details. When I have the opportunity later tonight, I will be sure to post a link to the full copy of the Holder speech, and I also will try to get posted a copy of this important new policy memorandum being sent to all United States attorney offices on Monday. (I am hopeful that DOJ will post both item on this official web page shortly, as there seems to be a lot of justified media interest in these topics, and not just among sentencing addled blogges.)
Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, is expected to announce the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.
Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder is planning to justify his policy push in both moral and economic terms.
“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder’s speech says. “It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.”
Mr. Holder will also introduce a related set of Justice Department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of “compassionate release” for “elderly inmates who did not commit violent crimes and have served significant portions of their sentences.”
The policy changes appear to be part of Mr. Holder’s effort, before he eventually steps down, to bolster his image and legacy. Turmoil over the Congressional investigation into the botched Operation Fast and Furious gun trafficking case ensnared him in the Obama administration’s first term, and more recently, controversy has flared over the department’s aggressive tactics in leak investigations....
Mr. Holder’s speech on Monday deplores the moral impact of the United States’ high incarceration rate: although it has only 5 percent of the world’s population, it has 25 percent of its prisoners, he notes. But he also attempts to pre-empt political controversy by painting his effort as following the lead of prison reform efforts in primarily conservative-led Southern states.
Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.
For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.
It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy....
“While the federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year,” Mr. Holder’s speech says. “Clearly, these strategies can work. They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it’s past time for others to take notice.”...
Mr. Holder’s speech marches through a litany of statistics about incarceration in the United States. The American population has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 percent. At the federal level, more than 219,000 inmates are currently behind bars — nearly half for drug-related crimes — and the prisons are operating at nearly 40 percent above their official capacity.
As I have already said to a few reporters, what may prove most important for the impact of what Holder does may be how other important persons inside and outside the Beltway react to this speech and its various policy elements. Will members of Congress, for example, publically praise Holder for what he says and will they say additional legislation is needed (or no longer needed) in response? Will federal judges make sure to allow defense attorneys to "enforce" this new policy in some way? Will the US Sentencing Commission alter is planned priorities for the coming year for guideline reforms based on both the themes and specifics in the Holder speech?
Exciting times! (Perhaps too exciting, and perhaps it is a good thing I will be off line until late tonight!)
Some recent and older related posts about AG Holder's speech the new federal politics of sentencing:
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- AG Holder to announce new charging policies to avoid some drug mandatories
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- "As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
AG Holder to announce new charging policies to avoid some drug mandatoriesAs reported in this Reuters piece (and in lots of other articles this morning), the "Justice Department plans to change how it prosecutes some non-violent drug offenders, so they would no longer face mandatory minimum prison sentences, in an overhaul of federal prison policy that Attorney General Eric Holder will unveil on Monday." Here is more:
Holder will outline the status of a broad, ongoing project intended to improve Justice Department sentencing policies across the country in a speech to the American Bar Association in San Francisco.
"I have mandated a modification of the Justice Department's charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels, will no longer be charged with offenses that impose draconian mandatory minimum sentences," Holder is expected to say, according to excerpts of his prepared remarks provided by the Justice Department....
Holder will also reveal a plan to create a slate of local guidelines to determine if cases should be subject to federal charges. The attorney general will point to the bipartisan backing of such goals in Congress, where there is "legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders."
The bipartisan backing could be important because the Obama administration will need Republican support for any major changes in Congress. Holder is expected to say that laws like these could save the United States billions of dollars.
The attorney general will also announce an updated plan for considering release for "inmates facing extraordinary or compelling circumstances - and who pose no threat to the public."
Thursday, August 08, 2013
A preview of (big?) sentencing news coming soon from AG Eric HolderI am intrigued to see this notable new CNN report headlined "Justice plans sentencing changes for non-violent criminals." The report appears to provide a preview, of sorts, of a big speech discussing sentencing issues that Attorney General Eric Holder is expected to be making on Monday. Here are some of the details:
The Justice Department is preparing an overhaul of how federal prosecutors deal with non-violent criminal offenders in a move that could mark the end of the tough-on-crime era, which began with strict anti-drug laws in the 1970s and accelerated with mandatory minimum prison sentences and so-called three-strikes laws.
The idea is to change the type of sentences that prosecutors seek in cases where instead of prison, offenders could benefit from alternatives such as drug court, a Justice Department official said.
While more flexible approaches to crime have long held support among liberal Democrats, fear of being tarred as weak on crime by Republican opponents has long caused moderate Democrats, particularly those running for president, to avoid the issue.
In recent years, however, some conservatives have begun pushing for some changes, using some of a few of the same buzzwords -- prison-industrial complex, for one -- to describe the inflexibility of the current criminal justice system. That's in part because reducing the prison population also could be a way to reduce budgets and reduce the size of government. More than a third of the Justice Department's annual budget is spent on prisons and detention.
Attorney General Eric Holder is expected to announce the initiative at a speech in San Francisco on Monday. Obama administration officials say the changes they are pursuing will not require congressional approval, although some lawmakers are pushing proposals to take similar steps....
The administration plans to highlight how states such as Texas and Georgia, led by Republicans, are using alternatives to prison to address the issue. By leading the effort, Holder, who has been the focus of criticism for conservatives during his more than four years in office, could find himself on the same side as many of his fiercest Republican critics.
Critics say the current criminal justice system has become bloated with many offenders locked up for non-violent drug offenses or technical probation violations such as not checking in with probation officers, not for committing new crimes.
Holder in an April speech noted the huge economic burden that incarceration carries for federal, state and local budgets: $83 billion in 2009 alone.... Holder, in his April speech to the National Action Network founded by Rev. Al Sharpton, highlighted many of the problems conservatives also cite in the criminal justice system. He noted that many prisoners aren't rehabilitated in prison and reoffend within years of serving their sentences.
Wednesday, August 07, 2013
"With Holder In The Lead, Sentencing Reform Gains Momentum"The title of this post is the headline of this notable new NPR piece, which includes lots of notable quotes from Attorney General Eric Holder. Here are excerpts:
Sit down with the attorney general to ask him about his priorities, , and he'll talk about voting rights and national security. But if you listen a bit longer, Eric Holder gets to this: "I think there are too many people in jail for too long and for not necessarily good reasons."
This is the nation's top law enforcement officer calling for a sea change in the criminal justice system. And he's not alone. Over the past few weeks, lawmakers have introduced bipartisan measures that would give judges more power to shorten prison sentences for nonviolent criminals and even get rid of some mandatory minimum terms altogether.
"The war on drugs is now 30, 40 years old," Holder said. "There have been a lot of unintended consequences. There's been a decimation of certain communities, in particular communities of color."
That's one reason why the Justice Department's had a group of lawyers working behind the scenes for months on proposals the attorney general could present as early as next week in a speech to the American Bar Association in San Francisco.
Some of the items are changes Holder can make on his own, such as directing U.S. attorneys not to prosecute certain kinds of low-level drug crimes or spending money to send more defendants into treatment instead of prison. Almost half of the 219,000 people currently in federal prison are serving time on drug charges.
"Well we can certainly change our enforcement priorities, and so we have some control in that way," Holder said. "How we deploy our agents, what we tell our prosecutors to charge, but I think this would be best done if the executive branch and the legislative branch work together to look at this whole issue and come up with changes that are acceptable to both."
Late last week, two senators — Illinois Democrat Dick Durbin and Utah Republican Mike Lee — moved in that direction. Their bill, called the Smarter Sentencing Act of 2013, would give judges more discretion to sentence nonviolent criminals below the so-called mandatory minimums. It would also lower mandatory minimums for several drug crimes to lower costs and cut down on crowding in a prison system that's estimated to be operating at 40 percent over capacity.
The chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy, says he'll hold a hearing on mandatory minimums next month. "They all sound like a great stop-crime idea when they were passed," Leahy said on the C-SPAN Newsmakers program Sunday. "Most of them sound better on paper than in practice."
His partner in that effort is Republican Rand Paul, a Tea Party favorite from Kentucky. They've introduced their own legislation, the Justice Safety Valve Act of 2013, to give judges more power to impose lower sentences — and not just in drug crimes. "Doing away with mandatory minimums, giving more discretion to judges, that shouldn't be Republican or Democrat," Leahy added. "It just makes good sense."
The idea has already taken off in nearly two dozen states including Arkansas, Kentucky and Texas, where it won support from prominent conservatives including Grover Norquist, part of a coalition known as Right on Crime. "It's easier to say, 'Let's spend a few dollars a day managing you at your home where you can spend time with your family, where you can work, instead of hundreds of dollars a day, keeping you in a cell,'" Norquist said in a video on the group's web site.
And the Justice Department explicitly pointed to state reform efforts in a letter to the U.S. Sentencing Commission in July. The old system, wrote official Jonathan Wroblewski, is being replaced with the idea that budgets are "finite," prison is a power that should be "exercised sparingly and only as necessary" and that "reducing reoffending and promoting effective reentry are core goals."
August 7, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack
Monday, August 05, 2013
After Reuters report about secret DEA group, should every federal drug prisoner now file new Brady claims?The question in the title of my post is my first reaction to this exclusive new Reuters report, which is headlined "Exclusive: U.S. directs agents to cover up program used to investigate Americans." Here are excerpts:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.
"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers. "It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."
The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.
Today, much of the SOD's work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked "Law Enforcement Sensitive," a government categorization that is meant to keep them confidential.
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."
A spokesman with the Department of Justice, which oversees the DEA, declined to comment. But two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily.
A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said. After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned. "It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.
Some defense lawyers and former prosecutors said that using "parallel construction" may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants. "That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."
Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional." Lustberg and others said the government's use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant's identity or classified evidence, to determine whether the information is relevant to the defense.
"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"...
The SOD's role providing information to agents isn't itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court. The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't accidentally try to arrest each other....
Since its inception, the SOD's mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit's annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.
Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE. The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said....
As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.
Current and former federal agents said SOD tips aren't always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away. "It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret." DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.
Wednesday, July 31, 2013
Big taxpayer pricetag ($4 million) for just one notable casualty from federal drug war
Accurately calculating either the benefits or costs of the modern American war on drugs is all but impossible. But it is hard not to notice and lament the discovery of one particularly costly incident for both a casualty of this war and federal taxpayers as is documented in this local article headlined "DEA settles left-in-cell case for $4M." Here are the details:
Daniel Chong, the self-confessed pot smoker who was caught up in a drug sweep last year and nearly died after federal agents inadvertently abandoned him in a holding cell for five days without food or water, is now a millionaire.
Attorney Eugene Iredale announced Tuesday he reached a $4.1 million settlement with the U.S. Department of Justice, without even filing a lawsuit. “What happened to Daniel Chong should never happen to any human being on the face of the planet,” Iredale said....In addition to the cash payment, the lawyer said federal officials agreed to adopt new detainee procedures designed to make sure no one is left unwittingly in a holding cell again. Iredale said he also was told the temporary lockups inside the San Diego office have been equipped with cameras to allow agents to view what happens inside.
The U.S. Department of Justice, which paid the settlement and absorbed all other liability from the local police agencies assisting in the sweep, declined Tuesday to discuss the events or the multimillion-dollar payment.
The harrowing experience for Chong, 25, an engineering major at UC San Diego, began on a Friday night in 2012, when he admittedly went to some friends’ house in University City to celebrate April 20, a special date for marijuana users. Chong didn’t know it at the time, but the home had been under surveillance by a federal narcotics task force.
Drug agents executed a search warrant early in the morning of April 21, Among other things, they found 18,000 ecstasy pills, marijuana and several weapons in the residence, according to court papers. The agents also found Chong sleeping on a couch in the front room and transported him and six others to the San Diego field office of the U.S. Drug Enforcement Administration for follow-up interviews.
Chong said he answered all of the agents’ questions and they agreed to send him home without criminal charges. But instead he was returned to a temporary holding cell, where he spent the next four days without food or water. During the final two days of the ordeal, Chong was in complete darkness, he said. He has said he became delirious, drank his own urine, ate the broken shards of his glasses and used the glass to cut the message “sorry mom” in his own forearm.
He said he kicked the door and screamed for help but agents never came to his assistance. DEA agents admitted later they “accidentally” left Chong in the cell and took the unusual step of apologizing publicly to the UCSD student. “When they finally opened the door, I was happy,” Chong said Tuesday. “I thought maybe they were going to take me to a mental ward. I was screaming.”
Chong spent five days at Sharp Memorial Hospital in Kearny Mesa before he was able to return home. Although his lawyer said Chong still suffers from post-traumatic stress, Chong indicated he is doing better overall....
Findings of an investigation of the case by the Office of the Inspector General’s Office of the U.S. Department of Justice have not been released. Iredale said federal investigators told him they do not plan to pursue criminal charges against any of the agents involved in the task force. Iredale singled out for the first time a San Diego Police Department officer who was the last person to see Chong before the cell was locked.
Friday, June 28, 2013
My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
As regular readers likely recall, a little over a month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect. In my first post about the Blewett ruling, I noted that I was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA."
A couple of weeks ago, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. " Ever interested in sharing my perspectives in full glossy detail, I have spent the last few days finalizing an amicus brief on behalf of NACDL explaining my Eighth Amendment thinking and that brief was filed with the Sixth Circuit (and with the consent of the parties) this afternoon.
For those following the Blewett case or interested in FSA retroactivity arguments, I recommend reading my 15-page filing in full (and I have provided the full document for downloading below). Here are a few passages that capture some of the themes to be found in the brief:
Through passage of the Fair Sentencing Act of 2010 (FSA), Congress significantly reduced the sentences mandated and recommended for all crack offenses (1) by raising by over 500% the quantity of crack triggering five- and ten-year minimum sentences, and (2) by ordering the U.S. Sentencing Commission to reduce all crack guideline sentences through emergency amendments to be promulgated “as soon as practicable.” See Sections 2 & 8 of FSA. As the Supreme Court has explained, this landmark legislation reflected Congress’ formal response to “the Commission and others in the law enforcement community strongly criticiz[ing] Congress’ decision to set” crack sentences so high relative to powder cocaine sentences and Congress having “specifically found in the Fair Sentencing Act that [each pre-FSA crack] sentence was unfairly long.” Dorsey v. United States, 132 S. Ct. 2321, 2328, 2333 (2012). In other words, passage of the FSA is a clear, bold and unmistakable legislative statement by our nation’s representatives that pre-FSA crack sentences were unnecessarily severe, unfair and excessively long.
While the text of the FSA provides the clearest objective evidence of the national consensus against the extreme pre-FSA crack sentencing provisions, federal practices, reflected in the work of other branches both before and after the FSA’s passage, confirm that the now-repealed 100-1 crack/powder cocaine sentencing scheme has long been rejected by all significant federal sentencing decision-makers....
It is not merely notable, but of great constitutional import, that virtually every federal criminal justice actor has in virtually every possible way acted in the last half-decade to demonstrate and vindicate the consensus view that pre-FSA crack sentences were excessively long. Significantly, in recent Eighth Amendment cases such as Miller and Graham and Kennedy and Roper and Atkins, the Supreme Court found unconstitutional extreme sentences that were still being vigorously defended by the jurisdictions which imposed them. Here, in sharp contrast, not only have the pre-FSA crack sentences imposed on the Blewetts been repealed by Congress, it is near impossible to find a single modern federal criminal justice decision-maker who will voice any substantive defense of the pre-FSA 100-1 crack sentencing structure.
Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
- Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
June 28, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (13) | TrackBack
Since the GOP was so troubled by ATF's work in Fast & Furious, will they now investigate drug-house stings?
Though perceived and perhaps intended as a political witch-hunt, the investigation by the GOP-led House of Representatives into the Fast & Furious program reveals some of the ugly realities of how our federal government commits crimes in order to try to go after criminals. Consequently, I hope there might be more Republican calls for hearings and investigation of ATF practices as a result of this important and huge new investigative report by USA Today. This lengthy story in the report is headlined "ATF uses fake drugs, big bucks to snare suspects; The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives has locked up more than 1,000 people using controversial sting operations that entice suspects to rob nonexistent drug stash houses. See how the stings work and who they target." Here are excerpts (and a video) from the USA Today report:
The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency in charge of enforcing the nation's gun laws, has locked up more than 1,000 people by enticing them to rob drug stash houses that did not exist. The ploy has quietly become a key part of the ATF's crime-fighting arsenal, but also a controversial one: The stings are so aggressive and costly that some prosecutors have refused to allow them. They skirt the boundaries of entrapment, and in the past decade they have left at least seven suspects dead.
The ATF has more than quadrupled its use of such drug house operations since 2003, and officials say it intends to conduct even more as it seeks to lock up the "trigger pullers" who menace some of the most dangerous parts of inner-city America. Yet the vast scale of that effort has so far remained unknown outside the U.S. Justice Department.
To gauge its extent, USA TODAY reviewed thousands of pages of court records and agency files, plus hours of undercover recordings. Those records — many of which had never been made public — tell the story of how an ATF strategy meant to target armed and violent criminals has regularly used risky and expensive undercover stings to ensnare low-level crooks who jump at the bait of a criminal windfall....
Most of the people the ATF arrested in drug-house stings last year — about 80% — already had criminal records that included at least two felony convictions before the agency targeted them. But 13% had never before been found guilty of a serious crime, and even some of those with long rap sheets had not been charged with anything that would mark them as violent.
ATF officials reject the idea that they should focus only on people with violent records. "Are we supposed to wait for him to commit a (obscenity) murder before we start to target him as a bad guy?" said Charlie Smith, the head of ATF's Special Operations Division, which is responsible for approving each sting. "Are we going to sit back and say, well, this guy doesn't have a bad record? OK, so you know, throw him back out there, let him kill somebody, then when he gets a bad record, then we're going to put him in jail?"....
[These stings] are dangerous because, if everything goes the way agents expect, they will be confronting a crew of heavily armed men amped up to commit an especially violent crime. To deal with that risk, the ATF steers the takedowns to remote places such as forest preserves or warehouses where it's easier to take suspects by surprise and where stray bullets won't endanger the public. Then it assembles a small army of federal agents and local police officers. Smith said he recalled one pre-arrest briefing with 170 officers.
Court records show ATF agents and local police officers working with them have shot at least 13 people during takedowns in drug-house stings since 2004, killing at least seven of them. Six were killed by local police officers conducting sting operations as part of an ATF task force. Most came after suspects fired at police or tried to run them down with cars....
The drug-house stings are engineered to produce long prison sentences, and they typically do precisely that. Using court records, USA TODAY identified 484 people convicted as a result of the stings, though there are almost certainly others. Two-thirds were sent to prison for more than a decade, a sentence longer than some states impose for shootings or robberies. At least 106 are serving 20-year sentences, and nine are serving life.
It's the drugs — though non-existent — that make that possible because federal law usually imposes tougher mandatory sentences for drugs than for guns. The more drugs the agents say are likely to be in the stash house, the longer the targets' sentence is likely to be. Conspiring to distribute 5 kilograms of cocaine usually carries a mandatory 10-year sentence — or 20 years if the target has already been convicted of a drug crime.
That fact has not escaped judges' notice. The ATF's stings give agents "virtually unfettered ability to inflate the amount of drugs supposedly in the house and thereby obtain a greater sentence," a federal appeals court in California said in 2010. "The ease with which the government can manipulate these factors makes us wary." Still, most courts have said tough federal sentencing laws leave them powerless to grant shorter prison terms.
To the ATF, long sentences are the point. Fifteen years "is the mark," Smith said. "You get the guy, you get him with a gun, and you can lock him up for 18 months for the gun. All you did was give this guy street creds," Smith said. "When you go in there and you stamp him out with a 15-to-life sentence, you make an impact in that community."
Because it is may be hard to generate too much public sympathy for the persons with criminal records being targeted by these ATF stings, I would be surprised if either Democrats or Republicans will start complaining anytime soon about what USA Today has uncovered about these ATF stings. But perhaps some libertarian leaning folks (paging Senator Rand Paul) will at least respond to this USA Today investigation with calls for greater transparency concerning these programs.
Saturday, June 22, 2013
"Executive Summary: National Survey of Veterans Treatment Courts"The title of this post is the title of this notable new paper on SSRN by Julie Marie Baldwin. Here is the abstract:
This summary reports the major results from the author’s dissertation research using data collected from a national survey administered to 79 Veterans Treatment Courts (VTCs) in 2012. This research produced a comprehensive national overview of VTCs; the complete findings, additional analysis, and an in-depth case study of a VTC can be found in her dissertation titled “Veterans Treatment Courts: Studying Dissemination, Implementation, and Impact of Treatment-Oriented Criminal Courts” (University of Florida).
And here are just a few of the notable findings from the paper's list of 28 "key findings":
VTCs are actively operating in most states with increases in membership and continuing to disseminate nationwide.
About one in five eligible veterans opt out or drop out, primarily because they consider the VTC program too rigorous or they do not want treatment....
The majority of VTC participants are male, white, and between 21 and 30 years of age; served in OIF/OEF/OND and in the Army; and have veteran status and trauma experience....
In the VTC participant population, there is a significant overrepresentation of veterans who are African American, Hispanic or Latino, under the age of 40, from the OIF/OEF/OND era, or served in the Marine Corps.
Drug-related offenses were the most reported type of offense to bring male and female veterans to VTC.
The majority of male and female VTC participants face substance abuse, mental health, and family challenges.
The majority of VTCs broadly define their target populations in their mission statements, but nearly half of VTCs exclude veterans who have been dishonorably discharged or have a current felony charge.
Funding sources vary between VTCs, and slightly less than half receive funding outside of their traditional court budget.
Most VTCs have a single judge, use a reward/sanction ladder, operate at the county level, and utilize peer mentors....
Overall, VTCs evaluate many areas of possible need and offer a wide variety of services to participants, including mental health, substance abuse, housing, vocational, and transportation services....
All VTCs require participants to attend treatment sessions, and the majority require participants to frequently appear in court and check in with VTC personnel, sign a contract, plead guilty, and go on probation....
Passing drug screens was the most difficult requirement for both male and female participants; however, difficulty levels with all other requirements varied by sex....
Overall, the majority of respondents believe there is definitely or probably a relationship between military service, personal challenges, and involvement in the criminal justice system.
Friday, June 14, 2013
Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect. In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA." In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.
I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett:
RE: Case Nos. 12-5226/5582
USA v. Cornelius D. Blewett and Jarreous J. Blewitt
In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”). The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.
I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?
Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
June 14, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack