Saturday, November 07, 2015

Some more highlights from a busy week at Marijuana Law, Policy and Reform

Though I previously highlighted here my reactions to this past week's big Ohio vote on a controversial marijuana reform initiaitve, lots more of note happened nationally and internationally this past week in the marijuana reform space.  Here are some posts covering some of the developments from Marijuana Law, Policy & Reform:

November 7, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Wednesday, November 04, 2015

Notable USSC member, Judge Bill Pryor, responds to Rep Goodlatte's attack on USSC

As noted in this prior post, titled "House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform," a notbale member of Congress recently authored this notable attack on the recent work of the US Sentencing Commission reducing federal drug sentences.  Interestingly, a notable member of the Commission, 11th Circuit Judge Bill Pryor (who was the attorney general of Alabama from 1997 to 2004), has now authored this response, which runs in the National Review under the headline "In Defense of the U.S. Sentencing Commission."  Here are excerpts:

On November 2, Representative Bob Goodlatte, who chairs the House Judiciary Committee, published an article in National Review Online attacking the 2014 decision of the U.S. Sentencing Commission to reduce sentencing guidelines for federal drug offenders. If you were to read Chairman Goodlatte’s article with no knowledge of federal law, you would think that the Sentencing Commission operates “irresponsibly” and “recklessly,” without congressional oversight, and sets sentencing guidelines “without regard to an inmate’s criminal history and public safety.” Nothing could be further from the truth....

When the commission votes to amend the sentencing guidelines, its decision becomes effective no sooner than six months later — that is, only after Congress has had an opportunity to exercise its statutory authority to reject the proposed change. Congress, of course, did not exercise that authority last year after the commission proposed modest changes in sentencing for drug cases. Instead, several members of Congress publicly supported those changes, and few said anything in opposition. In fact, Chairman Goodlatte did not even schedule a hearing to review our decision.

Now that the commission’s decision is being implemented without objection from Congress, Chairman Goodlatte objects to making the changes in drug sentencing retroactive, but he fails to mention that Congress gave the commission that authority. Indeed, Congress required the commission, whenever it lowers any guideline, to consider whether to make that change retroactive. And every retroactive change becomes effective only after Congress has had the opportunity to reject that decision. Congress again did not reject the decision to make the changes in drug sentencing retroactive, and Chairman Goodlatte did not schedule a hearing about it.

Moreover, when the Commission makes a change retroactive, each inmate must go before the sentencing judge, who must then consider whether the inmate should receive a reduced sentence under the new guideline. A retroactive guideline is not a get-out-of-jail-free card: That is, an inmate does not automatically receive a reduced sentence. Every sentencing judge must separately consider each inmate’s request together with any prosecution objection and then weigh concerns about each inmate’s criminal history and the need to protect public safety before reducing any inmate’s sentence....

Chairman Goodlatte referred to the commission as a group of “unelected officials” that is “going about sentencing reform in the wrong way,” but he failed to mention that Congress, with the support of the Reagan administration, created the commission as a permanent agency to consider and make needed sentencing reforms. The commission has seven members appointed by the president and confirmed by the Senate for fixed terms. By law, at least three members must be federal judges, and the membership must be bipartisan. For example, I was appointed to the commission by President Obama based on the recommendation of Senate Republican leader Mitch McConnell. The commission conducts public hearings and considers thousands of public comments before changing any guideline. And our decision to change the drug guideline and to make it retroactive was unanimous....

I and other members of the commission support Chairman Goodlatte’s goal of saving taxpayer dollars, reducing prison overcrowding, and making drug sentencing fair and responsible. We look forward to working with him and other members of Congress toward those ends. But he should not pretend that the independent and bipartisan Sentencing Commission is some sort of bogeyman working against those interests. Nothing could be further from the truth.

November 4, 2015 in Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, November 03, 2015

American Pot: will Ohioans make this the day marijuana prohibition died? UPDATE: NO, Issue 3 loses big

FrontAs students in my various classes know well, I have been more than a bit obsessed over the controversial campaign seeking to bring dramatic marijuana reform to my home state of Ohio this year.  My interest in this campaign is not only because I have a front-row seat on all the action and know a lot of the leader players, but also because (as hinted in the title of this post) I believe national marijuana prohibition throughout the United States will be functionally dead if a controversial marijuana legalization proposal can win in a swing state in an off-off-year election with nearly all the state's establishment politicians working overtime to defeat it.  

Stated more simply, if a majority of Ohio voters today vote to repeal marijuana prohibition in the state, I think it becomes all but certain that national marijuana prohibition will be repealed before the end of this decade.  These realities led me to start thinking about the famous lyrics of one of my all-time favorite songs, American Pie.  So, at the risk of making light of a serious issue on a serious day, I will carry out these themes by doing a poor man's Weird Al Yankovic:

A long, long time ago
I can still remember how that mary jane used to make me smile
And I knew if Ohio had a chance
We could make those politicians dance
And maybe they'd be hoppy for a while
 
But February made me shiver
With every complaint drug warriors delivered
Bad news in the reform plan
I couldn't be sure who was the man
 
I can't remember if I cried
When I read about the monopolies tried
But something touched me deep inside
The day the marijuana prohibition died

So bye, bye, American Pot Prohibition

Drove my Prius to the polls
but the polls gave me confusing choices
And them good ole boys were drinking whiskey 'n rye
Singin' this'll be the day prohibition dies
This'll be the day prohibition dies

Whatever my students and all other Ohioans think about these issue, I sincerely hope everyone goes out to vote so that we get a large and representative indication of what Buckeyes really think about thse matters.

November 3, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7)

Monday, November 02, 2015

House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform

The somewhat curious title of this post is prompted by this somewhat curious new National Review commentary authored by Representative Bob Goodlatte, chair of the House Judiciary Committee. The piece is headlined "Reduce Prison Sentences, but Not for Violent Offenders: The release of dangerous criminals shows why Congress needs to act on criminal-justice reform." Here are excerpts from the piece (with a few patently false phrases emphasized):

Starting this month, thousands of federal inmates are set to be released early from federal prison, including serious violent felons and criminal aliens.  This action is not the result of legislation passed by the people’s elected representatives in Congress.  Rather, it is a result of a decision made by unelected officials appointed to the United States Sentencing Commission.

In early 2014, the Sentencing Commission adopted an amendment to reduce the sentences for certain drug-trafficking and distribution offenses, including trafficking offenses that involve drug quantities substantial enough to trigger mandatory minimum sentences.  The Sentencing Commission made these reductions retroactive, applying them to tens of thousands of inmates in the Bureau of Prisons’ custody who are serving sentences for drug offenses.  Since then, thousands of federal inmates have filed motions with their courts of jurisdiction for sentence reductions and have been granted approval for early release.

The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety.  Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.

There is growing consensus in Congress that certain federal drug sentences, such as mandatory life imprisonment for a third drug-trafficking offense, are unnecessarily harsh and contribute to prison overcrowding and a ballooning federal prison budget.  However, the Sentencing Commission is going about sentencing reform the wrong way.  Its new guidelines blindly apply sentencing reductions to all federal inmates without considering the impact an early release would have on the safety of our communities.

The Sentencing Commission’s unilateral changes show why it is imperative that Congress act on sentencing reform and other criminal-justice issues.  If Congress does not act, the matter is left in the hands of an entity that has demonstrated it cannot be trusted to act responsibly.  Fortunately, leaders in the House of Representatives and the Senate agree that our nation’s criminal-justice system needs improvement and are working on bipartisan legislation to do just that....

Recently, I joined several leaders of the committee in introducing our first piece of bipartisan legislation to reform federal sentencing requirements and simultaneously prevent serious violent criminals from getting out early.

That bill — the Sentencing Reform Act — makes the criminal-justice system more fair, efficient, and fiscally responsible.  It reduces certain mandatory minimums for drug offenses, including cutting the third-strike mandatory life sentence to 25 years and the second-strike mandatory sentence from 20 to 15 years. The bill also broadens the mechanism for non-violent drug offenders to be sentenced below the mandatory minimum sentence and provides judges in those cases with greater discretion in determining appropriate sentences.  These changes will help save taxpayer dollars and take an important step toward reducing crowding in our federal prisons and the amount of federal taxpayer dollars spent on incarceration each year.

Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.  Most important, the bill contains major limitations on the retroactive application of these reforms, to ensure that serious violent criminals serve the full time for their crimes in federal prison and do not get out of prison early.  This is in stark contrast with what the Sentencing Commission has done to federal sentencing requirements....

While the fruit of the Sentencing Commission’s reckless changes is laid bare beginning this month, the House Judiciary Committee will move forward with the Sentencing Reform Act so that sentencing reform is done responsibly. Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.

The phrases I have highlighted are patently false because the instructions that the US Sentencing Commission giver to judges when deciding whether to reduce a defendant's sentence based on lowered guidelines includes an express requirement that the "court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction." In other words, the USSC does not call for retroactive application of reduced guidelines without regard for public safety.  Rather, the USSC expressly calls for judges to consider, on a case by case basis, whether reducing a sentence for an inmate poses a danger to any person or the community.  

That all said, while this op-ed seems to me to be taking unfair pot shots at the US Sentencing Commission, I think it is wise to suggest that Congress can and should feel urgency to enact its own federal sentencing reform if it is concerned in any way with how the US Sentencing Commission has been trying to reduce the federal prison population.  Both the Sentencing Commission and the US Department of Justice have been telling Congress for a number of years that federal prisons are badly overcrowded and are using up too much of the federal crime control budget.  The Commission's decision to reduce drug sentences across the board and to make these changes retroactive reflect, in part, a wise recognition by the Commission that it needed to do something significant ASAP to reduce federal prison overcrowding.  Notably, though many members of Congress have now been talking seriously about federal sentencing reforms for nearly three years, no actually refoms have become law.  

November 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

All the sentencing news that's fit to print in New York Times

I am to very pleased to see that the two lead stories in today's national section of the New York Times are two criminal justice reform stories that are close to my heart.  Here are the headlines and links:

In addition, inspired by the Supreme Court hearing this morning a capital case involving questionable jury selection, the New York Times also has this notable editorial and op-ed article on the topic:

November 2, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, November 01, 2015

"In Heroin Crisis, White Families Seek Gentler War on Drugs"

The title of this post is the headline of this notable lengthy New York Times article which astutely highlights how the demographics of who suffers most from a drug war can impact just how that war will be fought.  Here are excerpts from the piece:

The growing army of families of those lost to heroin — many of them in the suburbs and small towns — are now using their influence, anger and grief to cushion the country’s approach to drugs, from altering the language around addiction to prodding government to treat it not as a crime, but as a disease.

“Because the demographic of people affected are more white, more middle class, these are parents who are empowered,” said Michael Botticelli, director of the White House Office of National Drug Control Policy, better known as the nation’s drug czar. “They know how to call a legislator, they know how to get angry with their insurance company, they know how to advocate. They have been so instrumental in changing the conversation.” Mr. Botticelli, a recovering alcoholic who has been sober for 26 years, speaks to some of these parents regularly.

Their efforts also include lobbying statehouses, holding rallies and starting nonprofit organizations, making these mothers and fathers part of a growing backlash against the harsh tactics of traditional drug enforcement. These days, in rare bipartisan or even nonpartisan agreement, punishment is out and compassion is in.

The presidential candidates of both parties are now talking about the drug epidemic, with Hillary Rodham Clinton hosting forums on the issue as Jeb Bush and Carly Fiorina tell their own stories of loss while calling for more care and empathy.

Last week, President Obama traveled to West Virginia, a mostly white state with high levels of overdoses, to discuss his $133 million proposal to expand access for drug treatment and prevention programs. The Justice Department is also preparing to release roughly 6,000 inmates from federal prisons as part of an effort to roll back the severe penalties issued to nonviolent drug dealers in decades past.

And in one of the most striking shifts in this new era, some local police departments have stopped punishing many heroin users. In Gloucester, Mass., those who walk into the police station and ask for help, even if they are carrying drugs or needles, are no longer arrested. Instead, they are diverted to treatment, despite questions about the police departments’ unilateral authority to do so. It is an approach being replicated by three dozen other police departments around the country.

“How these policies evolve in the first place, and the connection with race, seems very stark,” said Marc Mauer, executive director of the Sentencing Project, which examines racial issues in the criminal justice system. Still, he and other experts said, a broad consensus seems to be emerging: The drug problem will not be solved by arrests alone, but rather by treatment....

Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African­-Americans for a more empathetic approach were largely ignored.  “This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools.  “But,” she added, “one cannot help notice that had this compassion existed for African­-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”

November 1, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Friday, October 23, 2015

"Marijuana Politics and Policy: As Goes Ohio, so Goes the Nation...?"

The title of this post is the title of an exciting event that I have been helping some of my students at The Ohio State University Moritz College of Law put together.  The event's timing is working out great, because the next Friday, October 30, 2015 is just few days days after the GOP candidates will be in Colorado discussing econmic issues (and marijuana reform?) and a few days before Ohio voters will go to the polls to decide on two marijuana-related ballot initiatives.  

Folks can (and should) pre-register for this (free) event at this link, which is also where you can find this summary description:

National leaders in Marijuana Politics and Policy will gather at Moritz to discuss what we have learned from reform movements in states like Colorado, Washington and others, and how these movements relate to the impending Ohio Election. In addition to discussing the impact of marijuana reform on a variety of broader criminal justice and social reform movements, the event will include a discussion of what effects reform in Ohio would have both within the state and nationally.

Participants will include Professor Douglas Berman, John Hudak from the Brookings Institute, Philip Wallach from the Brookings Institute and local researchers and advocates.

Why this event is so timely and exciting should become obvious from just a review of these recent posts from my Marijuana Law, Policy & Reform blog: 

October 23, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (3)

Tuesday, October 20, 2015

Federal judge decides (finally!) that Congress has limited DOJ prosecution of state-legal marijuana businesses

As regular readers may recall, Section 538 of a spending bill passed late last year by Congress forbids the use of money by the Department of Justice to interfere with State laws implementing medical marijuana programs.  The meaning and application of this federal spending limitation on DOJ has been the subject of much dispute and some notable litigation, and yesterday brought a big ruling by US District Judge Charles Breyer.  This article from California, headlined "Major victory for marijuana dispensary in federal court," provides the details:

Lawful medical cannabis operators across America scored a major victory in federal court [after] United States District Judge Charles R. Breyer ordered the lifting of an injunction against one of California’s oldest lawful dispensaries, the Marin Alliance for Medical Marijuana.

Judge Breyer ruled that newly enacted Congressional law — the Rohrabacher-Farr Amendment — prevents the government from prosecuting the Fairfax-based Marin Alliance for Medical Marijuana, and its founder Lynette Shaw. The ruling in the United States District Court for the Northern District of California will have far-reaching legal impact, attorneys say....

In December, Congress de-funded the Justice Department’s war on medical marijuana in the states. Howver, the Justice Department has been narrowly interpreting Congressional law to continue the crackdown. The law’s authors contend Justice is breaking Congressional law by going after state-legal cannabis activity.

In June, Shaw’s attorney Greg Anton motioned for the Court to dissolve the injunction against Shaw, citing the new Rohrabacher-Farr Amendment (Section 538). Judge Breyer ruled, “the plain reading of [Congressional law] forbids the Department of Justice from enforcing this injunction against MAMM to the extent that MAMM operates in compliance with state California law.”

Judge Breyer ruled WAMM had been complying extensively with state law. “The mayor of the Town of Fairfax [stated] MAMM was operating as a model business in careful compliance with its local use permit in a ‘cooperative and collaborative relationship’ with the community,” Breyer noted in his ruling.

Judge Breyer’s ruling hands a shield to every state-legal pot shop facing federal action, lawyers state. It sets a precedent that will likely chill federal prosecutors eyeing state-legal medical cannabis enterprises, said the law office of attorney Robert Raich, through a spokesperson.

“We finally have a federal judge who is taking the authors of the spending amendment seriously when they say the intent and its wording should be interpreted so that the federal government should not be spending resources prosecuting individuals complying with state law.”

It represents a major setback for the Department of Justice, which had hoped Rohrabacher-Farr would be interpreted far more narrowly.

The full ruling by Judge Breyer is available at this link.

Some previous related posts:

October 20, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, October 19, 2015

Michigan arrest data highlight diverse impact of local decriminalization and continued impact of state-level marijuana prohibition

This new local article, headlined "Michigan pot arrests are trending up, and 8 other points about marijuana," provides data that reinforce my concern that modest marijuana reforms do not really change the basic realities of how marijuana prohibition impacts individuals in various communities.  Here are some of the notable data details:

At a time when surveys indicate a majority of Michigan residents support legalizing pot, arrests for marijuana possession or use are increasing — even as arrests for other crimes are going down, according to data collected by the Michigan State Police.  Between 2008 and 2014, arrests for marijuana possession or use went up 17 percent statewide, that data shows, while arrests for all crimes dropped by 15 percent.

One possible reason: Federal health surveys indicate marijuana is the most commonly used illicit drug, and the number of regular users has been increasing.  In 2013, about 7.5 percent of Americans age 12 or older had used marijuana in the past month, according the 2015 federal Survey on Drug Use and Health.

Below are other highlights from the Michigan arrest data, which was collected by the State Police from local and county enforcement agencies.

1. The vast majority of marijuana arrests are for possession or use.

In 2014, there were 20,483 arrests for marijuana use or possession, which was 86 percent of all marijuana arrests.  About 10 percent of the other arrests are for selling the drug, and the remainder are for "producing" the drug, smuggling or "other."  Arrests related to marijuana are about two-thirds of all drug arrests in Michigan and in 2014 were 9 percent of all criminal arrests.

2. A disproportionate number of those arrested for marijuana-related crimes are between the ages of 18 and 24.

About 43 percent of those arrested in 2014 for marijuana were age 18 to 24. The breakdown for other age groups: 26 percent were age 25 to 34; 11 percent were age 35 to 44; 9 percent were under 18; 7 percent were age 45 to 54, and 3 percent were sage 55 or older.  The federal drug survey indicates that marijuana use is highest among young adults.  In fact, 24 percent of male and 17 percent of female female full-time college students age 18 to 22 use marijuana, the survey shows.

3. The vast majority of those arrested in marijuana cases are men. 

Men comprised 83 percent of marijuana arrests in 2014, which is disproportionate compared to their rate of usage.  About 9.7 percent of American males age 12 and older are users of marijuana compared to 5.6 percent of women, according to a 2013 federal survey on drug use.  That means men are 1.7 times more likely to use marijuana, but are five times more likely to be arrested on marijuana charges.

4. African-Americans are a disproportionate number of marijuana arrests.

An African-American in Michigan was three times more likely to be arrested in 2014 for violating marijuana laws compared to a white person, although surveys and research indicate little difference between usage rates between the two groups.  In all, African-Americans comprise about 14 percent of Michigan's population, but 35 percent of marijuana arrests....

6. Since 2011, 21 Michigan cities have voted on legalizing or decriminalizing marijuana....

7. Decriminalization initiatives have had mixed impact on arrests in those communities.

Six communities — Detroit, Grant Rapids, Lansing, Kalamazoo, Flint and Ypsilanti — passed decriminalization initiatives before 2014.  Based on arrests in those cities for marijuana use or possession in 2011 compared to 2014, the initiatives had mixed impact.

The most dramatic changed occurred in Grand Rapids, where arrests for marijuana use or possession dropped from 952 in 2011 to 93 in 2014.  The numbers also dropped significantly between 2011 and 2014 in the city of Kalamazoo, from 327 to 166.  In Detroit, arrests dropped from 1,297 to 974 during the three-year period.

Arrests for marijuana use or possession actually went up in Lansing and Ypsilanti.  Lansing had 73 arrests for marijuana use or possession in 2011, compared to 79 in 2014. In Ypsilanti, arrests went from 74 to 88 during that time frame.

Cross-posted at Marijuana Law, Policy & Reform, where these additional recent posts may be of interest to sentencing fans:

October 19, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Friday, October 16, 2015

Notable new polling on distinct sentencing/punishment issues

Via two of my favorite crime and punishment bloggers, I see that there are two new polls about public views of two different sets of sentencing and punishment issues:

For a host of reasons, I am not sure these polls are especially consequential when it comes to changing the minds or votes of established politicians.  After all, as I discussed in this recent post about medical marijuana reforms consistently polling at 90% support, we long ago would have seen an end to blanket federal marijuana prohibition if elected officials were very responsive to public polling on all these issues.  Still, these polls still provide a useful snapshot of some public perceptions of sentencing reform debates, and they also might lead even established politicians to be more (or less) confident about how aggressive they should be in their efforts in this arena.

October 16, 2015 in Death Penalty Reforms, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, October 15, 2015

"Ending the war on drugs would not end mass incarceration" ... but it would help, perhaps a lot

NixonDrugWarBThe title of this post is the headline of this new Washington Post opinion piece authored by Charles Lane, plus a little commentary from me. The piece serves as fitting fact-check of recent sloppy statements about prison populations by Prez candidates (as do other recent similar pieces via PolitiFact and The Marshall Project).  But, like lots of commentary highlighting the statistical realities of modern prison populations, I fear Lane here underplays the potential import and impact of significant changes in state and federal drug laws. Here are excerpts, with my extended commentary at the end:

It seems that no presidential debate this year would be complete without denunciations of the drug laws, which, it is alleged, result in long prison terms for thousands of people, disproportionately African Americans, who are guilty only of low-level offenses, thus fueling “mass incarceration.”

At the last Republican debate, on Sept. 16, former Hewlett-Packard chief executive Carly Fiorina charged that “two-thirds of the people in our prisons are there for nonviolent offenses, mostly drug-related.”

Apropos of former Florida governor Jeb Bush’s admitted youthful marijuana use, Sen. Rand Paul (Ky.) observed that “there is at least one prominent example on the stage of someone who says they smoked pot in high school, and yet the people going to jail for this are poor people, often African Americans and often Hispanics, and yet the rich kids who use drugs aren’t.”

When Democrats faced off Tuesday night, Sen. Bernie Sanders (I-Vt.) said he is for marijuana legalization, “because I am seeing in this country too many lives being destroyed for nonviolent offenses. We have a criminal justice system that lets CEOs on Wall Street walk away, and yet we are imprisoning or giving jail sentences to young people who are smoking marijuana.”

“I agree completely with the idea that we have got to stop imprisoning people who use marijuana. . . . We have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana,” the front-running former secretary of state, Hillary Clinton, chimed in.

Too bad this bipartisan agreement is contradicted by the evidence. Fiorina’s numbers, for example, are exaggerated: In 2014, 46 percent of all state and federal inmates were in for violent offenses (murder, rape, robbery and aggravated assault), according to the latest Justice Department data. And this is a conservative estimate, since the definition of violent offense excludes roughly 30,000 federal prisoners, about 16 percent of the total, who are doing time for weapons violations.

Drug offenders account for only 19.5 percent of the total state-federal prison population, most of whom, especially in the federal system, were convicted of dealing drugs such as cocaine, heroin and meth, not “smoking marijuana.”

Undeniably, the population of state prisons (which house the vast majority of offenders) grew from 294,000 in 1980 to 1,362,000 in 2009 — a stunning 363 percent increase — though it has been on a downward trajectory since the latter date. But only 21 percent of that growth was due to the imprisonment of drug offenders, most of which occurred between 1980 and 1989, not more recently, according to a review of government data reported by Fordham law professor John Pfaff in the Harvard Journal of Legislation. More than half of the overall increase was due to punishment of violent offenses, not drugs, Pfaff reports....

Given the relatively small share of drug offenders, ending the war on drugs would not significantly alter the racial disparity in incarceration rates, contrary to the conventional wisdom. Blacks make up 37.5 percent of all state prisoners, about triple their share of the population as a whole, according to the Justice Department. If we released all 208,000 people currently in state prison on a drug charge, the proportion of African Americans in state prison would still be 37 percent. In short, ending the “war on drugs” is not quite the panacea for mass incarceration that politicians imply.

Marijuana legalization could help reduce arrest rates, to be sure; and to the extent fewer people get busted for smoking pot, that would, indeed, cut down on the resulting undue negative personal and social consequences. Otherwise, the bipartisan consensus in favor of looser drug laws is just the latest political free lunch, served up by politicians who would rather discuss anything except real public policy trade-offs.

Republicans and Democrats alike are propounding the crowd-pleasing notion that we can have less incarceration — saving the country billions of dollars and international shame — without risking an increase in violent crime, or other harms. In truth, if we released all 300,000 drug offenders from state and federal prison, the U.S. incarceration rate would still be far higher than it was three decades ago, and far higher than the rates of other industrial democracies.

The only way to lower it dramatically would be to reduce the frequency and duration of imprisonment for violent crimes, while continuing to reduce violent crime itself. If any of the candidates has a plan to do that, he or she should speak up.

Images (1)Lane is quite right to highlight the statistical reality that lots more imprisoned offenders are behind bars for violent offenses than for drug crimes.  But he fails to ackowledge that a considerable amount of violent crime is related to black market turf wars and that the failure to treat effectively drug addictions and related woes often drive property crimes.  American legal and social history should provide a ready reminder of these realities: violent and property crimes (and incarceration rates) spiked considerably during alcohol Prohibition not because of greater alcohol use but due to enhanced incentives for otherwise law-abiding people to profit in the black market from others' desire for a drink.

Regular followers of this blog likely recall the case of (my former client) Weldon Angelos, which provides a clear example of a low-level marijuana dealer serving decades in federal prison based technically on "violent firearm crimes."  The modern federal drug war explained why an informant (himself fearing a long federal drug sentence) told authorities Angelos was a major drug dealer, why federal prosecutors threated Angelos with over 100 years mandatory imprisonment if he did not forgo his right to a trial after te informant arranged to buy marijuana from Angelos, and why even after his acquittal on some charges, a federal judge was bound by law to give Angelos 55 years in federal prison for having firearms nearby as he sold the informant a relatively small amount of marijuana.

I bring all this up because, again to recall American history, four score ago the ending of alcohol Prohibition indeed did itself significantly help to "reduce violent crime itself."  I am cautiously hopeful that ending marijuana prohibition will help have the same effect in the modern era.  More broadly, I sincerely believe we would further reduce violent crime by ending a drug war that relies on state violence and condemnation and investing monies saved (and taxes earned) into a significant public-health commitment to address serious drug addictions using evidence-based treatments.

October 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (12)

Thursday, October 08, 2015

Basic elements of House's Sentencing Reform Act of 2015

As noted in this prior post, a bipartisan group of Respresentatives today introduced a version of sentencing reform in the form of this 18-page bill called the Sentencing Reform Act. This press release from the House Judiciary Committee provides this introduction:

The Sentencing Reform Act of 2015 reduces certain mandatory minimums for drug offenses, reduces the three-strike mandatory life sentence to 25 years, broadens the existing safety valve for low-level drug offenders, and provides judges with greater discretion in determining appropriate sentences while ensuring that serious violent felons do not get out early. The bill also contains sentencing enhancements for Fentanyl trafficking, a highly addictive and deadly drug that is becoming a growing epidemic in the United States.

The Sentencing Reform Act of 2015 is the first bill that is a result of the House Judiciary Committee’s criminal justice reform initiative. The Committee continues to work on additional bills that address other aspects of our criminal justice system, including over-criminalization, prison and reentry reform – including youth and juvenile justice issues – improved criminal procedures and policing strategies, and civil asset forfeiture reform. The Committee will roll out more bills addressing these topics over the coming weeks.

The press release also includes quotes from various House members and has links to a "one-pager on the Sentencing Reform Act [that] can be found here and section-by-section [that] can be found here."

October 8, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

What major federal criminal justice reform now gets 90% support in key swing states?

In this post and others at Crime & Consequences, Bill Otis rightly notes that relatively little objective polling has focused on the array of federal sentencing and correction reforms that are being actively proposed and promoted now by many leaders in the US Senate and House.  Like Bill, I would like to see the media and other independent groups conduct polling on some key aspects of federal drug sentencing and broader rehabilitation-oriented prison reform proposals now being considered on Capitol Hill.

Critically, though, thanks largely to voter-initiated, state-level reforms over the last few years, we are starting to see a lot more media and other independent groups conduct polling on one particular aspect of the federal criminal justice system: blanket marijuana prohibition and criminalization.  The latest polling numbers in this space come from the independent Quinnipiac University Poll, and it finds remarkably high public support for ending marijuana prohibition in swing states in order to allow adults "to legally use marijuana for medical purposes if their doctor prescribes it."  This Quinnipiac press release about its poll places emphasis on closely-divided (and gender/age-distinctive) views on recreational marijuana reform, but I find the medical marijuana poll numbers most remarkable and important. Here are excerpts from the press release (with my emphasis added):

"If men are from Mars and women are from Venus, then the Red Planet might be the more spacey place. That's because men are more likely than women to support legalization of marijuana for recreational use," said Peter A. Brown, assistant director of the Quinnipiac University Poll. "Not surprisingly support for the change is linked to age, with younger voters more likely to see personal use of pot as a good thing."

"But despite the support for legalization, a majority of voters in Florida, Ohio and Pennsylvania say they would not use the drug if it were legal," Brown added. "Only about one in 10 voters opposes legalizing marijuana for medical purposes." ...

Florida voters support legalizing personal marijuana use 51 - 45 percent.... Voters support legalizing medical marijuana 87 - 12 percent....

Ohio voters support legalizing personal marijuana use 53 - 44 percent.... Voters support legalized medical marijuana use 90 - 9 percent.

Pennsylvania voters are divided on legalizing personal marijuana use, with 47 percent in favor and 49 percent opposed.... Voters support legalizing medical marijuana 90 - 9 percent.

Among other stories, these latest poll numbers reinforce my concern that federal laws and our federal political leaders (including, it seems, most of the candidates running to be our next President) are badly out of touch with public views on marijuana reform. Even in these purple swing states, roughly 90% (!) of those polled say, in essence, that they do not support blanket marijuana prohibition and criminalization, and yet blanket marijuana prohibition persists in federal law and precious few elected federal office holders (or those seeking to be elected office holders) are willing even to talk about seeking to change these laws in the short term.

That all said, I am getting a growing sense that, over time, more and more promiment establishment politicians are coming to understand just how talking seriously (and modestly) about marijuana reform can be a winning political issue (especially among younger voters).  Still, as evidenced by some recent posts at my Marijuana blog, the politics, policies and practicalities of marijuana reform are so dynamic, I find myself unwilling ever to make bold predictions about what might happen next in this reform space.

Some recent posts from Marijuana Law, Policy & Reform:

October 8, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5)

Tuesday, October 06, 2015

Early prisoner release following reduced drug guideline retroactivity about to be reality

It seems like a real long time ago that the US Sentencing Commission suggested it might reduced the severity of its drug sentencing guidelines across the board. (In fact, it was way back in early January 2014, as reported in this post.)  That USSC proposal a few month later became a formal guideline amendment known as drugs -2 (as reported here in April 2014); some months after that, the USSC formally voted to make this reduced guideline fully retroactive to those already serving long federal drug prison sentences (as reported here in July 2014).  

But when making its reduced drug guidelines retroactive, the USSC also provided that no federal drug prisoner should be released until fall 2015 in order to give courts and prisons time to process all thousands of folks who would not be eligible to seek early release.  Now, as this new Washington Post piece reports, all this USSC reform is finally going to mean thousands of prisoners actually securing early releases:

The Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. Most of them will go to halfway houses and home confinement before being put on supervised release.

The early release follows action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — which reduced the potential punishment for future drug offenders last year and then made that change retroactive....

The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.

“The number of people who will be affected is quite exceptional,” said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016....

The U.S. Sentencing Commission voted unanimously for the reduction last year after holding two public hearings in which members heard testimony from former attorney general Eric H. Holder Jr., federal judges, federal public defenders, state and local law enforcement officials, and sentencing advocates. The panel also received more than 80,000 public comment letters, with the overwhelming majority favoring the change.

Congress did not act to disapprove the change to the sentencing guidelines, so it became effective on Nov. 1, 2014. The commission then gave the Justice Department a year to prepare for the huge release of inmates.

The policy change is referred to as “Drugs Minus Two.” Federal sentencing guidelines rely on a numeric system based on different factors, including the defendant’s criminal history, the type of crime, whether a gun was involved and whether the defendant was a leader in a drug group. The sentencing panel’s change decreased the value attached to most drug-trafficking offenses by two levels, regardless of the type of drug or the amount.

An average of about two years is being shaved off eligible prisoners’ sentences under the change. Although some of the inmates who will be released have served decades, on average they will have served 8 1/2 years instead of 10 1/2 , according to a Justice Department official.

“Even with the Sentencing Commission’s reductions, drug offenders will have served substantial prison sentences,” Deputy Attorney General Sally Yates said. “Moreover, these reductions are not automatic. Under the commission’s directive, federal judges are required to carefully consider public safety in deciding whether to reduce an inmate’s sentence.”

In each case, inmates must petition a judge, who decides whether to grant the sentencing reduction. Judges nationwide are granting about 70 sentence reductions per week, Justice officials said. Some of the inmates already have been sent to halfway houses.

In some cases, federal judges have denied inmates’ requests for early release. For example, U.S. District Judge Royce C. Lamberth recently denied requests from two top associates of Rayful Edmond III, one of the District’s most notorious drug kingpins. Federal prosecutors did not oppose a request by defense lawyers to have the associates, Melvin D. Butler and James Antonio Jones, released early in November.  But last month Lamberth denied the request, which would have cut about two years from each man’s projected 28 1/2 -year sentence....

Critics, including some federal prosecutors, judges and police officials, have raised concerns that allowing so many inmates to be released at the same time could cause crime to increase.

But Justice officials said that about one-third of the inmates who will be released in a few weeks are foreign citizens who will be quickly deported.  They also pointed to a study last year that found that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 was not significantly different from the rate for offenders who completed their sentences.

October 6, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, October 04, 2015

Strong crime and punishment coverage of drugs, guns and more via Vox

I remain a bit unsure of what Vox is and who is behind all of Vox Media, but I am sure that Vox has recently done a lot of good and important work on a lot of topics that should be of great interest to criminal justice fans.  Here are headlines and links:

October 4, 2015 in Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1)

Tuesday, September 29, 2015

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

"Heroin, Murder, and the New Front in the War on Drugs"

DownloadThe title of this post is the headline of this lengthy and effective new Vice article.  Here are excerpts:

It can be tough to find a true villain among the legions using and selling opioids, two groups that often overlap. This is especially true given that for many, heroin use was preceded by the abuse of widely-prescribed opioids like OxyContin, which as of 2013, was responsible for more deaths than heroin....

But prosecutors across America are dusting off old statutes to pursue full-fledged murder charges against dealers and even fellow users and friends who pass or sell heroin to a person who then dies of an overdose. Possible sentences include life without parole. The law-and-order crackdown is taking place at a moment when prominent figures in both major parties are, for the first time in decades, seriously considering reducing a jail and prison population that has grown to well more than 2 million — and curbing a war on drugs that has persistently failed to dampen the appetite for the stuff....

So far, the number of such charges that have been filed, and the criteria by which prosecutors are deciding to use them, remain murky. The phenomenon has received little attention from legal scholars and activists, and the charges have surprised defense lawyers who end up handling the cases....

So far, it seems like plenty of smalltime hook-ups are getting caught in the fray. In September 2013, Joseph L. Robinson, an Illinois man living near near St. Louis, was sentenced to 20 years in federal prison for selling a man who later died two-tenths of a gram of heroin — for $30. Jim Porter, a spokesperson for Southern District of Illinois US Attorney Stephen Wigginton, says there was nothing else that made the crime particularly heinous. If there had been, he says, the sentence could have been even longer.

The prosecutions also run counter to the widespread adoption of harm-reduction policies like equipping first responders with the overdose-reversing drug naloxone, as well as "good Samaritan" laws, which offer limited legal protection to people who call 9-1-1 to report a drug-related medical emergency. But those laws typically offer immunity from low-level possession charges and not for drug dealing, according to the National Conference of State Legislatures — let alone for drug-related murder charges. Prosecutors hope that harsh charges will deter dealers and keep drugs away from users, but they could also convince drug addicts to flee the scene and leave someone dying on the floor.

The charges could even encourage violence on the part of dealers determined to silence informants. "To bring punitive criminal justice responses to these situations will not prevent the underlying concern and will likely only exacerbate the situation due to those involved not speaking to police or emergency personnel, or even becoming violent to avoid such charges," Art Way, Colorado director for the Drug Policy Alliance, an organization critical of the drug war, writes in an email. "Much of the violence involved in and around the drug trade involves the intimidating or killing of informants or those considered to be informants."...

In the Cleveland and Toledo area, Steven Dettelbach, the US Attorney for the Northern District of Ohio, is charging dealers under a federal law that potentially carries a 20-year mandatory minimum sentence for a drug-dealing offense resulting in death or serious injury—and mandatory life for someone with a prior felony drug conviction. In Cuyahoga County, there were 198 heroin-related deaths in 2014, according to the Northeast Ohio Media Group. "Federal penalties are extremely serious, and the people who are out there dealing what amounts to poison need to get the message that this is going to be treated like a homicide," Dettelbach tells VICE in an interview.

Though former Attorney General Eric Holder instructed federal prosecutors to pursue harsh mandatory minimums more judiciously in 2013, that doesn't mean they won't seek long sentences for drug crimes, according to Dettelbach. Rather, he says his office is focusing such charges on the most serious of offenders, particularly those dealing heroin mixed with the powerful synthetic opioid fentanyl, which has been linked to many overdose deaths. "The fentanyl issue is actually now becoming more acute than the straight heroin issue," Dettelbach says. "In my mind, I will just tell you it's hard to be a dealer in fentanyl and claim that you don't know its going to kill some people."

Federal prosecutors in states around the country, including Oregon, Texas, Pennsylvania, and West Virginia, are filing these kinds of charges in response to opioid deaths. In Southern Illinois, Porter says that their office began to file such charges after Wigginton's 2010 appointment, and that he has so far won 11 convictions. In July, a federal judge in Kentucky sentenced a man to life without parole for dealing oxycodone to a user who died; that district's US Attorney's Office said it was "the first time in Kentucky that a life sentence was imposed in an overdose death case involving prescription drugs."...

State prosecutors also appear to be pursuing harsh charges with growing frequency. In Wisconsin, prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, an increase from 47 in 2012, according to USA Today.

In New Jersey, Ocean County Prosecutor Joseph Coronato has made these sorts of charges a focus, and his office is training police around the state on how to investigate heroin-related deaths. "We kind of call it our checkmate charge," says Al Della Fave, a spokesperson....

State and federal laws don't limit these charges to major dealers, or to those who act with malicious intent. In New Orleans, Chelcie Schleben and her reported ex-boyfriend Joshua Lore currently face life without parole for the February 2014 fatal overdose "murder" of 23-year-old Kody Woods. The charges are severe "even by extreme Louisiana standards," says Stephen Singer, a professor at Loyola Law School and Schleben's lawyer.

Louisiana already has the highest number of nonviolent offenders serving life without parole, according to a 2013 American Civil Liberties Union report, and state drug sentences tend to be extraordinarily harsh. Last year, Governor Bobby Jindal signed legislation lengthening the possible sentence for repeat heroin dealers to 99 years.

In Charleston, West Virginia, prosecutors have charged Steven Craig Coleman with murder in connection with a February heroin-related death. Rico Moore, Coleman's lawyer, is mystified by the charges. "He's a drug user," Moore says. "He's not as they allege—he's not a drug dealer... It makes absolutely no sense to punish someone who's an addict." According to Moore, Coleman's opioid addiction stems from his abuse of lawfully-prescribed drugs. Coleman is poor, he says, his mother died from drug use, and his father is an addict....

In Ohio, prosecutors don't yet have the ability to seek the harshest penalties available under state law for these deaths—but they want them. Last September, Hamilton County Prosecutor County prosecutor Joseph T. Deters announced involuntary manslaughter charges for involvement in a fatal intoxication, the first time, according to their office, such charges had been filed in county history. Deters took the opportunity to complain that the the law should "be strengthened to allow us to charge these kinds of cases as murder... If the law is changed, drug dealers would then be facing the possibility of life in prison for selling the drugs that take too many lives."

Last year, legislation to that effect passed the state house in Ohio with Attorney General Mike DeWine's enthusiastic support. Republican State Rep. Jim Butler, who introduced the legislation, plans to reintroduce a bill altered to better ensure that mere users are not the ones prosecuted for deaths. But he wants to tack on an increase in sentences for drug trafficking as well. "I think what we need to do is be tougher on drug traffickers and be more compassionate to drug users," he says.

September 29, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Monday, September 28, 2015

"The Real Roots of ’70s Drug Laws"

The title of this post is the headline of this new notable New York York Times commentary by Michael Javen Fortner.  Here are excerpts:

The number of black males killed by police officers continues to rise: Michael Brown, Eric Garner, John Crawford III, Ezell Ford, Akai Gurley, Tamir Rice.  But many more still die at the hands of black neighbors instead of the police.  Yet today we rarely ask politicians to speak their names or recognize their dignity and worth.

That’s because some consider talk of black­-on-­black violence a distraction.  This is a natural outgrowth of the view that the over­-policing of urban neighborhoods and the scourge of mass incarceration are all the result of a white­-supremacist social order, the “New Jim Crow,” born of white backlash against the civil rights movement.  But this is too convenient a narrative.  It erases the crucial role that African-­Americans themselves played in the development of the current criminal justice system.

Today’s disastrously punitive criminal justice system is actually rooted in the postwar social and economic demise of urban black communities.  It is, in part, the unintended consequence of African-­Americans’ own hard­fought battle against the crime and violence inside their own communities. To ignore that history is to disregard the agency of black people and minimize their grievances, and to risk making the same mistake again.

The draconian Rockefeller drug laws, for example, the model for much of our current drug policies, were promoted and supported by an African-American leadership trying to save black lives.  During the 1960s, concentrated poverty began to foster a host of social problems like drug addiction and crime that degraded the social and civic health of black neighborhoods.  After the Harlem riots of 1964 (which erupted following the shooting of a 15-­year-­old black male by a white cop), polls showed that many African­-Americans in New York City still considered crime a top problem facing blacks in the city, while few worried about civil rights and police brutality....

In 1969, the Manhattan branch of the N.A.A.C.P. issued an anti­crime report that railed against the “reign of criminal terror” in Harlem. It warned that the “decent people of Harlem” had become the prey of “marauding hoodlums” and proposed that criminals, including muggers, pushers, vagrants and murderers, be subjected to steep criminal sentences. The civil rights organization reaffirmed its battle against police brutality, but added, “We favor the use of whatever force is necessary to stop a crime or to apprehend a criminal.” Vincent Baker, the author of the report, testified that “the silent majority in Harlem would welcome a police order to get tough.” He even advocated for a “stop and frisk” policy.

Harlem business leaders supported stricter law enforcement and harsher punishments for criminals. In 1973, nearly three­-quarters of blacks and Puerto Ricans favored life sentences for drug pushers, and the Rev. Oberia Dempsey, a Harlem pastor, said: “Take the junkies off the streets and put ’em in camps,” and added, “we’ve got to end this terror and restore New York to decent people.  Instead of fighting all the time for civil rights we should be fighting civil wrongs.”...

Four decades later, the decline in violent crime has created the space for a new reform discourse — a Black Lives Matter movement that is fighting for much needed change.  But, as we rightly rethink punishment, it would be a mistake to ignore crime, both its origins and its effects.  Yes, we need robust government action, including economic development, job training programs and renewal of aging housing stock, to reverse a half­-century of social and economic decline.  But, as the Harvard sociologist Robert J. Sampson notes, “Physical infrastructure and housing are crucial, but so, too, is the social infrastructure.” We need to bolster religious and civic organizations that cultivate stronger social ties, mitigate disorder and fight crime.

But long­term strategies can’t provide immediate relief from the daily horrors of urban crime.  In the short run, we need the police.  We need aggressive law enforcement methods that do not harass or brutalize the innocent.  Ultimately, though, we can’t eliminate the propensity to over­police and over­imprison unless we curb the disorder and chaos that threaten and destroy urban black lives.  As the history of the Rockefeller drug laws suggests, if crime rates climb to extraordinary levels, black citizens may once again value public safety more than civil liberty — and all the marching and shouting will have been for naught.

September 28, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, September 25, 2015

Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums

This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:

The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.

Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.

In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.

Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.

The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.

Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....

Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.

Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.

Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.

Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.

Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.

September 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, September 24, 2015

First Circuit panel reverses stat max drug sentence based on co-defendant disparity

A panel of the First Circuit handed down a lengthy and significant sentncing opinion yesterday in US v. Reyes-Santiago, No. 12-2372 (1st Cir. Sept. 23, 2015) (available here). Here is how the majority opinion begins:

Appellant Jorge Reyes-Santiago ("Reyes") was among 110 defendants charged in a two-count indictment with drug and firearms offenses arising from a massive drug ring operating in public housing projects in Bayamón, Puerto Rico.  Most of the high-level members of the conspiracy, Reyes among them, pled guilty pursuant to plea agreements. Other than for Reyes, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months, the latter imposed on the chieftain of the enterprise.  Reyes received the stiffest Count One sentence: 360 months. In this appeal, he seeks resentencing on Count One on three grounds: the government's alleged breach of his plea agreement, the sentencing court's alleged inappropriate conduct in demanding witness testimony, and the disparity between his sentence and those of similarly situated co-defendants.  Reyes also claims the district court erred in ordering a 24-month consecutive sentence for his violation of supervised release conditions imposed in an earlier case.

We find merit in the disparity argument.  Ultimately, in sentencing the lead conspirators, the district court refused to accept stipulated drug amounts only for Reyes, listed as Defendant #9 in the indictment, and for the conspiracy's kingpin, Defendant #1.  Although sentencing courts have the discretion to reject recommendations made in plea agreements, and need not uniformly accept or reject such stipulations for co-defendants, they nonetheless must impose sentences along a spectrum that makes sense, given the co-defendants' criminal conduct and other individual circumstances.  In this case, after reviewing Presentence Investigation Reports ("PSRs") and sentencing transcripts for the leaders in the conspiracy, we conclude that the rationale offered by the district court for the substantial disparity between Reyes's sentence and the sentences of others above him in the conspiracy's hierarchy is unsupported by the record.  We therefore must remand this case to the district court for reconsideration of Reyes's sentence.

September 24, 2015 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, September 15, 2015

"Here’s why Obama should pardon hundreds more women"

The title of this post is part of the headline of this recent Fusion commentary authored by Amy Ralston Povah. Here are excerpts:

After the fifth year in prison, each additional year begins to eat into the layers of your soul.  Parents pass away, friends drift off, spouses find someone else.  Children grow up, graduate, get married, have children of their own; holidays come and go, and when that 7th, 15th or 22nd year rolls around, you feel like your heart is being crushed.

I shared those emotions with the women I served time with at FCI Dublin, a correctional facility in northern California.  I was serving 24 years on a drug conspiracy charge, arrested for collecting bail money for my husband, who manufactured MDMA.  He was the kingpin, but he only received three years probation because he cooperated with the prosecutors.  I refused a plea bargain, and I got stuck in jail.

So when President Clinton commuted my sentence on July 7, 2000 — after I’d served 9 years and 3 months — I felt like I had won the lottery.  The prison compound erupted into cheers and marched me across the yard to the gate on the day I left.  And yet, it was a bittersweet victory.  While I was elated for myself, it was hard to walk away, knowing I would not see these women the next day, or possibly ever again.

I felt that mix of bittersweet emotions again this summer when President Obama commuted the sentences of 46 nonviolent drug offenders, more than any sitting president in the last 50 years.  It was the result of Clemency Project 2014, a federal initiative that encouraged over 35,000 prisoners to apply for clemency.  On one day, 42 men and four women were the lucky lottery winners chosen from a massive number of candidates....

Having served time with over a thousand women, I believe they are the hardest hit victims in the war on drugs.  Many women are indicted because they are merely a girlfriend or wife of a drug dealer, yet are not part of the inner circle and have limited information to plea bargain with.  Mandatory minimums are reserved for those who do not cut a deal with prosecutors.

Women are being overlooked by the Department of Justice as candidates worthy of a seat on that coveted commutation list.  Over the last 30 years, the female prison population has grown by over 800% while the male prison population grew 416% during the same timeframe.  More than half of the mothers in prison were the primary financial supporters of their children before they were incarcerated.  And the vast majority of women in federal prison were put there due to conspiracy laws that hold them equally culpable for the criminal actions of other co-defendants, often a spouse or boyfriend. In other words, many women are guilty by association.

There are hundreds of women sitting in federal prison on drug conspiracy charges who deserve clemency — most of them first offenders serving life without parole.  Alice Johnson is an accomplished playwright who has served 18 years on a life sentence for cocaine conspiracy and has the support of three members of Congress.  Josephine Ledezma has already served over 23 years and is still waiting to have her petition filed.  Sharanda Jones has served 15 years; filed for clemency in 2013 and has over 270,000 supporters on change.org.  Michelle West has served 22 years of a double life sentence, plus fifty years, in a case where the key witness was given immunity and never served a day for a murder he admitted to.

Some days, sitting in prison, you think life can’t get any worse.  And then another blow comes when 46 people receive clemency and your name is not on that list.  Many of the same women I said goodbye to in 2000 are still in prison, serving 30 years to life, even though, like myself, they were minor participants in a nonviolent drug conspiracy case.... But with a stroke of his pen, President Obama can help right the wrongs of the past and give these deserving women a second chance at life.  He should get started right away.

September 15, 2015 in Clemency and Pardons, Drug Offense Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (2)

Two very interesting (and very different) long reads about mass incarceration and drug dealing

I recently noticed two new (and very different) long-form commentary pieces that both ought to be of interest to deep thinkers about crime and punishment. Both defy easy summarization, so I will just provide links and the extended headline of the pieces and encourage readers in the comments to highlight important themes in either or both:

September 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, September 13, 2015

Alabama Chief Justice laments mandatory LWOP drug sentence for 76-year-old offender

As reported in this AP article, "Alabama Chief Justice Roy Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws."  Here is more about the notable separate opinion authored by the top jurist of the the Cotton State:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. "I believe Brooker's sentence is excessive and unjustified," Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows "grave flaws" in Alabama's sentencing system.

"A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole," Moore added. "I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose."

The full opinion by Chief Justice Moore is available at this link.

September 13, 2015 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Thursday, September 10, 2015

Notable collective makes plans for "smart on crime" criminal code reform in Ohio

My local Columbus Dispatch has this new Ohio criminal justice reform story headlined, "Statehouse leaders push for shorter prison sentences, reducing prison population."  Here are the (still a bit fuzzy) details concerning what is afoot in the Buckeye state:

Ohio officials are undertaking a sweeping reform of the state’s criminal justice code, potentially resulting in shorter prison sentences and fewer people going to prison for non-violent drug crimes.

An unusual bipartisan coalition, including top legislative leaders, tax reformer Grover Norquist, an American Civil Liberties Union official, and Piper Kerman, author of Orange is the New Black: My Year in a Women's Prison, announced plans today to overhaul Ohio’s lengthy and cumbersome criminal code top-to-bottom.

“No one is here to say today that criminals should not be punished. We are here to say that not all crimes or criminals are created equal,” Senate President Keith Faber, R-Celina, said at a Statehouse press conference. “This is not about being hard or soft on crime. It’s about being smart on crime.”

No specifics were announced. Exactly how the criminal code will be overhauled will be up to the 24-member Ohio Criminal Justice Recodification Committee appointed by the legislature. Faber said he told the committee to “swing for the fences” when it comes to big picture reform ideas. But he balked when asked about two specific areas: revising parole standards for current inmates and marijuana legalization.

The consensus of speakers was that the reform goals are reducing the prison population by incarcerating fewer non-violent drug offenders and people with mental health issues, eliminating mandatory, flat sentences, and removing barriers for ex-offenders to return to society....

Speaker after speaker criticized the burdensome incarceration rate in Ohio and the U.S., the highest in the world. “Locking people in cages is extreme and dehumanizing,” said Allison Holcomb, head of the ACLU’s national Smart Justice program. “This is the top priority for us.”

Norquist, president of the conservative Americans for Tax Reform, said he views reform from more of an economic standpoint. “We have too many people in prison and not the right people in prison,” he said. That is costing taxpayers far too much, he said.

Kerman, now living in Columbus, came to public attention as author of her real-life story that led to the Netflix series, Orange is the New Black. “I’m fairly confident I’m the only person up here with a felony,” Kerman said opening her remarks. Following her release from a Connecticut prison on a drug-related money laundering charge, she became an advocate for sentencing and parole reform. She is teaching writing to inmates at two Ohio prisons.

Faber said the recodification committee, which is chaired by Auglaize County Common Pleas Judge Fred Pepple, does not have a specific deadline for completing its work. The final recommendations must be passed by the General Assembly.

September 10, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, August 31, 2015

District Judge struggles with impact of reduced guidelines for (long-ago) kingpin crack dealer

NPR has this notable new story about a notable request by a notable federal crack offender seeking a reduced sentence based on the new reduced crack guidelines.  Ths piece is headlined "Notorious Cocaine Dealers' Release Requests Test New Sentencing Guidelines," and here are excerpts:

A longtime federal judge struggled Monday over what constitutes justice for members of one of Washington, D.C.'s most notorious drug rings. Senior U.S. District Judge Royce C. Lamberth pressed a public defender about the fate of Melvin Butler, a man who helped flood the city with cocaine that contributed to waves of violence in the late 1980s.

"You're saying that I can't consider the fact that he was one of the biggest drug dealers in the history of our city?" the judge asked. "Congress has tied my hands and I can't consider that?"

The issue arrived in a spotless second-floor room in the federal courthouse on a request from Butler, now 52, for a sentence reduction that would allow him to leave prison in November, after spending half of his life behind bars.

Butler landed in federal custody on April 28, 1989 — so long ago that most of his court records are lost somewhere in storage. Butler, based in California, was a top associate of Rayful Edmond III, Washington's most infamous drug kingpin. The two men allegedly connected at a heavyweight boxing match in Las Vegas in 1987. Two years later, their trial riveted the country. Officials outfitted the courtroom with bulletproof glass and flew Edmond in each day from a lockup in Quantico, Va.

Butler had initially been sentenced to life in prison, Judge Lamberth pointed out, as "one of the two top ringleaders" of a gang that made more than $1 million a week. But the judge who presided over the case, and died in 1997, later reduced the sentence. Now, Butler and his lawyer are trying to shave off more time using a process the U.S. Sentencing Commission approved last year for drug offenders to secure early release from prison.

"I recognize this man's stature and what happened in the '80s," said Assistant Federal Public Defender Dani Jahn. "He's now 52 years old. He's not the person that he was. This is a very lengthy sentence." Jahn said that if Butler were sentenced under laws in place now, he'd face far less time. And, she said, if the judge refuses to grant the request, Butler will still win release in 2017, having served his full term. She pointed out that Butler will remain under supervised release, subject to sanctions if he breaks the law again. "These guys have everything to lose by screwing up when they get out," Jahn said, adding that appearing before Judge Lamberth under those circumstances "would not be a good experience."...

Another member of the Edmond drug gang, lower down on the ladder, James Jones, also is seeking a sentence reduction. Now 58, Jones is scheduled to leave prison in February 2018. But he too wants to take advantage of a change in the sentencing guidelines that would allow him to go free in November with the judge's permission. Thousands of prison inmates across the country already have won the ability to leave prison early under that mechanism.

But in his courtroom, across from the U.S. Capitol, Judge Lamberth expressed reservations. "It still gives me pause what Congress is doing," the judge said. "I would have thought the top drug kingpins in the country wouldn't be the beneficiaries of what we're trying to do here."

The questions of crime and punishment are particularly timely now as the Obama administration has prioritized sentencing reform and clemency initiatives that would deliver shorter sentences and other relief to nonviolent drug criminals. Lawmakers from both political parties are preparing to advance their own proposals for overhauling the criminal justice system in September....

But the question before Judge Lamberth, and others deliberating notorious cases across the country, is what standards to consider for criminals involved at higher levels in violent drug gangs. The judge said he recalled Edmond testifying that many of his lieutenants wielded firearms. Lamberth also asked about an apparently unresolved murder allegation involving Jones dating to the 1980s. But the prosecutor, the public defender and the probation officer couldn't remember back that far, so they asked for time to research the question.

Prosecutor Barry Wiegand said he didn't want to opine about changes in criminal justice policy. But he said he lived several blocks away from what used to be a drug market under Edmond's control. "I wouldn't presume as an assistant United States attorney to be privy to the wisdom of Congress," he said. "I observe that 31- and 32-year sentences are long. I observe that a lot of places aren't what they used to be. What we did in the 1980s and 1990s was the right thing to do, and we did it well."

August 31, 2015 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Friday, August 28, 2015

Despite copious reform talk, big and tough federal drug sentencing system churns on

ChartAs regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years.  And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.

The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year.  But this overall decline was driven mostly by a significant decline in immigration cases.  Here are some snippets from the report which highlight some of modern federal sentencing trends:

The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011.  Since then the number of cases has decreased each year.  In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836.  Since fiscal year 2011, the number of these cases has declined by 12.0 percent....

Drug cases have traditionally been the most common federal cases.  However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011.  That year immigration cases were the most common offense in the federal system....  In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses.  That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....

Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.

For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007.  In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months).  This compares to a high of 129 for these offenders in fiscal year 2007.  Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months).  Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....

Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines.  In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993.  The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent.  This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.

In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases.  Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.

These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.

August 28, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, August 26, 2015

Notable talk of crimnal justice reform at GOPAC State Legislative Leaders Summit

My local Columbus Dispatch has this notable article about notable policy message that was delivered to top GOP state lawmakers at a notable conference this week.  The article is headlined "Packing prisons not the answer, lawmakers told," and here are excerpts:

Meeting in a state where more than 50,000 people live in prisons built to hold about 39,000, Republican state lawmakers from across the country were told Tuesday that “tough on crime” must be replaced by a smarter approach to criminal justice.

“Conservatives recognize we have too many criminal laws,” said Patrick Purtill Jr., director of legislative affairs for the Faith and Freedom Coalition, told a room of GOP lawmakers attending the annual GOPAC State Legislative Leaders Summit, held this year in Columbus.

“We’re sending too many people to prison. We’re spending too much money to keep them there for far too long. And we’re doing too little to re-enter them into our communities. It’s becoming increasingly clear that over-criminalization and over-incarceration are making our communities less safe.”

Republicans are leading the country on criminal-justice reform, said David Avella, chairman of GOPAC, a national group that grooms Republican lawmakers and candidates and provides forums for the sharing of conservative policies. “If you want to look at how we heal some of the divisions our country faces right now, this is a winning issue for us,” he told the conference, which runs through Thursday.

The Faith and Freedom Coalition is one of seven organizations stretching across the ideological spectrum that is partnering with the U.S. Justice Action Network to implement laws that reduce prison populations, implement more rational criminal penalties, and do more to help inmates re-enter society.

Ohio, along with Pennsylvania and Michigan, currently are the Action Network’s three target states for criminal justice reform. The group is working with Ohio lawmakers such as Senate President Keith Faber, R-Celina, and Rep. Barbara Sears, R-Sylvania. “These reforms make us safer. They’re not just cost-saving measures,” said Holly Harris, executive director of the Justice Action Network, pointing to Pew Chartable Trusts data that shows states with the biggest drops in prison populations also are seeing some of the greatest decreases in crime rates....

Faber, an attorney and former probation officer, told the [Ohio legislature's] Recodification Committee in June to “ swing for the fences.” He told GOPAC attendees that he knows Republicans have traditionally approached criminal justice with a “tough on crime” attitude. “This isn’t about making sure the bad guys get out earlier,” he said. “But we need room for the really bad guys, and the question is what do we do about the people that aren’t so bad?”

Faber hopes the committee will have recommendations by next summer. “One of the things I hope we do is give judges discretion back,” Faber said. “Another thing we need to look at is making that finer line between what is a felony and what isn’t. I also hope they look at what we need to increase the penalties for to stop that recidivism cycle.”

August 26, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, August 25, 2015

"Why Europe Is Exploring Drug Decriminalization"

The title of this post is the headline of this notable article about international drug war developments.  Here is how the piece gets started:

Fourteen years ago, fed up with the losing fight against overdose deaths and the rising prevalence of HIV/AIDS, Portugal embarked on a bold experiment by decriminalizing all drugs and taking a public health approach to illegal drug use.  It now has the second-lowest number of drug-induced deaths in all of Europe and has seen a steady decrease in the number of newly diagnosed HIV and AIDS patients.  Now, other countries are looking to Portugal’s success.  Chief among them is Ireland, which is inching toward the notion that drug abuse should be handled as a public health rather than a criminal justice issue.

In late July, Minister of State for the National Drugs Strategy Aodhán Ó Ríordáin invited representatives from regional drug and alcohol task forces to a roundtable discussion in Dublin on a possible move toward Portugal-style drug policy.  The meeting produced wide consensus on the decriminalization of all drugs, according to The Irish Times.  Ó Ríordáin is particularly interested in diverting funding for the prosecution and incarceration of drug users to rehabilitation programs.

“[Decriminalization] can’t happen by itself,” Ó Ríordáin, who was appointed in May, told The Irish Times. “There has to be a continuum of care. There has to be an understanding around supports and resources and counseling and all those different things.”  One tangible outcome Ó Ríordáin would like to see is the introduction of “consumption rooms” staffed with public health workers, where intravenous drug users can safely use drugs such as heroin and access clean needles. Portugal first established a consumption room in a facility near a health center and a police department in Lisbon in 2014.

Ireland’s legislative Committee on Justice, Defense, and Equality sent some of its members to Lisbon in June to learn more about the 15-year experiment with decriminalization. The delegation found a dramatic drop in the number of HIV/AIDS cases, a decrease in drug-related crime, and no increase in drug use. Predictions that Portugal would become a destination for drug tourists, the committee members wrote in their report from the trip, haven’t come true. Since the report’s release, the committee has invited comments on decriminalization from the public and expects to issue recommendations in October for how Ireland should move forward.

August 25, 2015 in Drug Offense Sentencing, Sentencing around the world | Permalink | Comments (0)

Monday, August 24, 2015

Spotlighting disparities in who gets drug treatment in prison

This notable new Pacific Standard article shines a spotlight on yet another arena in which race and other personal factors may impact the operation of our modern criminal justice system.  The piece is headlined "Who Does, and Who Doesn’t, Get Drug Treatment in Prison: New research finds a racial disparity," and here are excerpts (with a few key links preserved):

Research has consistently shown how important it is for inmates who come into prison with drug addictions to get treatment behind bars: Drug use in prison that involves needles can spread disease, and cold-turkey withdrawals can lead to overdoses when people get out. But new research also shows that, even when drug treatment is available to prison inmates, not everyone actually takes advantage of it.  In fact, the disparity between who does and does not seek treatment often falls among racial lines.

For her recent article in the journal Addictive Behaviors, University of Colorado–Boulder sociologist Kathryn Nowotny looked at survey information gathered in 2004 from state prisons across the country — over 5,000 inmates in 286 prisons.  She found that fewer than a half of the inmates who had drug dependency problems had received any kind of treatment at all in their time behind bars.  Of those who had, the most commonly referenced treatment was “self-help groups” (as opposed to, say, opioid replacement therapy).  And she also found that, when treatment was available, Hispanic inmates who had drug dependency were much less likely than either white or black inmates to utilize it. But why?

Nowotny wrote that she was motivated to examine the racial disparities in drug treatment program use in prisons because there was a dearth of research on this topic.  But many other researchers have previously found the same patterns in drug treatment programs out in the communities as well.  She notes that — in addition to the widely held consensus viewpoint that people of color have disproportionate contact with every stage of the criminal justice system in America — programs that divert first-time drug offenders out of prison and into alternative treatment have often been shown to favor those defendants “with economic and social resources.”  But the disparity she found in treatment during prison sentences was apparent, even when she accounted for all of the other possible factors, like age, gender, marital status, socioeconomic factors, mental health, and criminal history.

In looking for reasons for the disparity, she points to another finding — that white inmates with drug dependency issues are more likely than Hispanic ones to have in-prison drug treatment mandated as part of their sentences. There could also be a much simpler reason for the difference in drug treatment participation. “It is also possibly that language barriers and other indicators of acculturation account for this disparity especially considering that one in five Latinos in prison are foreign born,” she adds. “This hypothesis is bolstered by the fact that no black-white disparities were found.”

A similar study, published in 2013 in the International Journal of Offender Therapy and Comparative Criminology, looked not at state prison inmates but at people being held in county jails that offered drug treatment programs. But the researchers in that study did not find that the differences broke down on more personal lines. They did not find a disparity between jail inmates of different races or ethnicities; here, it was more an issue of age and individual outlook. Younger people were less likely to seek treatment. Men were less likely than women to accept this kind of help. So were people who said they doubted whether they had the discipline or the time to make it stick.

August 24, 2015 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Saturday, August 22, 2015

"Guns and Drugs"

The title of this post is the title of this notable new paper by Benjamin Levin now available via SSRN. Here is the abstract:

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law.  To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession.

The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration.  Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area — possessory gun crime — that receives much less criticism.

Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.

August 22, 2015 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Thursday, August 20, 2015

"Bernie Sanders Announces Bill to Abolish Private Prisons, Hints at Marijuana Policy Platform"

The title of this post is the headline of this notableg piece via the Marijuana Politics website that reports on some recent statements by Senator Sanders on the campaign trail that should be of special interest to sentencing law and policy fans. Here are excerpts (with links from original):

Bernie Sanders isn’t done talking about criminal justice reform — in fact, he’s merely getting started.  The presidential contender continues to rise in the polls and sensible Drug War reforms will only increase his standing with the Democratic base.

Appearing at a campaign rally in Nevada on Tuesday, the Vermont Senator and Democratic presidential candidate talked at length about the unfairly punitive policies that plague the American justice system and disproportionately affect people of color in the United States. Speaking to the crowd of 4,500 supporters gathered outside the University of Nevada, Sen. Sanders went beyond his previous speeches on the issue, announcing that, come September, he will be introducing federal legislation which would abolish for-profit private prisons.

“When Congress reconvenes in September,” Sanders said, “I will be introducing legislation, which takes corporations out of profiteering from running jails.”

Tackling the problem of for-profit prisons is a bold move for a federal legislator, as the prison industry is a hugely profitable part of the U.S. economy.  The top two private prison companies in the country, Corrections Corporation of America and GEO Group, have a combined annual revenue of over $3 billion, much of which is spent lobbying elected officials to protect their bottom line.  While some states, such as New York and Illinois, have enacted laws to ban the privatization of prisons, for-profit prisons have tragically remained a staple of the American criminal justice system, in large part due to the country’s skyrocketing incarceration rates made possible by the War on Drugs.

Bernie Sanders also indicated that the War on Drugs will be a focus of his campaign. “We want to deal with minimum sentencing,” Sanders said Tuesday,  “Too many lives have been destroyed for non-violent issues.  People that are sent to jail have police records. We have got to change that.  Our job is to keep people out of jail, not in jail.”  According to audience members, Bernie Sanders also said that his campaign will be addressing marijuana legalization in the weeks to come.

August 20, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Wednesday, August 19, 2015

"Why Not Treat Drug Crimes as White-Collar Crimes?"

The question in the title of this post is the title of this notable new article available on SSRN authored by Thea Johnson and Mark Osler. Here is the abstract:

Drug dealing is a business enterprise.  At its core is the manufacture, transport, financing, and selling of illegal narcotics.  The most successful drug dealers are the ones who are skilled in the tools of business, and success is measured in the profit generated. Given these undeniable realities, shouldn’t we treat narcotics trafficking the way we do other business-based crimes like fraud or embezzlement?

One odd point of distinction between narcotics and other business crimes has been the frequent use of harsh sentencing measures to create deterrence in the former but not the latter.  This is odd because deterrence works where a potential violator both (1) is aware of possible sanctions, and (2) performs a rational cost-benefit analysis that incorporates those possible sanctions.  White collar defendants are a better target for deterrence measures by both of these metrics, yet we use those tough measures often in addressing drug crimes and almost never in tackling other business crimes.

To conflate the punishments for narcotics crime and other business crimes would be fairly simple.  They could fall under a single guideline in a guideline system, with sentences determined in proportion to the amount of profit taken. Statutes could be similarly constructed. Many sectors of society want to lower incarceration and bring new integrity to the criminal justice system. Treating drug crimes for what they are — crimes of commerce — would go a long way towards that goal.

August 19, 2015 in Drug Offense Sentencing, Offense Characteristics, White-collar sentencing | Permalink | Comments (5)

Monday, August 17, 2015

US Sentencing Commission releases new data on retroactive application of "drugs -2" guideline amendment

I just noticed on the US Sentencing Commission's website this notable new document titled "2014 Drug Guidelines Amendment Retroactivity Data Report." This part of the report's introduction provides the basic back-story for the data which follow:

On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that revised the guidelines applicable to drug trafficking offenses by changing how the base offense levels in the drug or chemical quantity tables in sections 2D1.1 and 2D1.11 of the Guidelines Manual incorporate the statutory mandatory minimum penalties for drug trafficking offenses (Amendment 782). Specifically, the amendment reduced by two levels the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties, resulting in corresponding guideline ranges that include the mandatory minimum penalties, and made conforming changes to section 2D1.1. Amendment 782 became effective on November 1, 2014.

On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782 beginning on the effective date of the amendment. The Commission also voted to require that courts not release any offender whose term of imprisonment was reduced pursuant to retroactive applications of Amendment 782 prior to November 1, 2015.  To effectuate these decisions, the Commission promulgated Amendment 788, which added Amendment 782 to the list of amendments in section 1B1.10 (Reduction in Term of Imprisonment as a Result of an Amended Guideline Range)(Policy Statement) that apply retroactively. Amendment 788 also added a new special instruction to section 1B1.10 requiring that the effective date of all orders reducing a term of imprisonment pursuant to retroactive application of Amendment 782 be November 1, 2015 or later.  Amendment 788 became effective on November 1, 2014.

The data in this report represents information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782.  The data in this report reflects all motions decided through July 24, 2015 and for which court documentation was received, coded, and edited at the Commission by August 3, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, approximately 13,000 federal prisoners have had their federal drug prison sentences reduced by an average of nearly two years.

So, given the (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers close to one billion dollars.  Kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

August 17, 2015 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Split Ninth Circuit panel upholds federal conviction in "stash house" sting operation

The Ninth Circuit released a notable split panel decision today in US v. Pedrin, No. 11-10623 (9th Cir. Aug. 17, 2015) (available here), which rejects a notable challenge to a conviction emerging from ATF's "stash house sting" operations. This unofficial summary of the Pedrin ruling highlights why the two opinions in the case make for an interesting read:

Affirming a conviction and sentence for conspiracy to possess with intent to distribute cocaine, the panel held that the defendant’s prosecution did not result from “outrageous government conduct.”

The defendant was the target of a drug “stash house” sting, in which an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms suggested that he, the defendant, and a co-conspirator join forces, rob a fictitious stash house, and split the proceeds.  Following United States v. Black, 733 F.3d 294 (9th Cir. 2014), the panel held that this reverse sting operation was not outrageous government conduct warranting the dismissal of the indictment where the co-conspirator reached out to the government, and not vice versa; the defendant readily agreed to participate in the supposed stash-house robbery; and the defendant supplied plans and materials.  These circumstances provided a sufficient basis for the government to infer that the defendant had a predisposition to take part in the planned robbery.

Dissenting, Judge Noonan wrote that the defendant was not known to the government to be predisposed to raid a stash house at the time when an agent of the ATF proposed this action to him.  Accordingly, even though the defendant did not argue entrapment, the court should hold that he was entrapped because the ATF originated the criminal design, implanted it in the defendant’s mind, and induced him to commit the crime that the government then prosecuted.

August 17, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, August 13, 2015

What can and should voters know about the criminal justice impact of marijuana prohibition as they consider repeal?

I will be off-line for most of the rest of the day in order to have a meeting with a retired Ohio judge (and perhaps some others) to discuss the question that is the title of this post.  The question has become especially salient for Ohio voters today: as detailed in this post at MLP&R, as of yesterday it became official that, in less than 90 days,  Ohio voters will be deciding whether to legalize marijuana in the Buckeye State for recreational and medical use.

I have spent a fair bit of time trying to rigorously assess, for Ohio and other jurisdictions, just how to measure and describe the "criminal justice footprint" of modern marijuana prohibition and how that footprint can be impacted by marijuana reform.  But while I am off-line today, I would be grateful to hear from readers just what they would be eager to know, as a voter considering a reform proposal, about how the criminal justice might change (or not change) due to repeal of marijuana prohibition in a jurisdiction.

August 13, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Wednesday, August 12, 2015

Lots of great reads via The Marshall Project

I really enjoy all the work being done by The Marshall Project, and this collection of recent items from the site highlights why sentencing fans should be making regular visits there:

August 12, 2015 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, August 11, 2015

Thanks to prior commutation, Missouri marijuana lifer now to get paroled

As reported in this Huffington Post piece, headlined "Man Who Was Serving Life In Prison For Marijuana To Be Set Free," there has been a notable development in a notable drug sentencing case in Missouri. Here are the details:

Jeff Mizanskey, a 61-year-old Missouri man who was serving life in prison for nonviolent marijuana offenses, will be set free in a matter of days, his attorney confirmed Monday to The Huffington Post. "We were notified today that he will be granted parole and be released within '10 to 25 days,'" lawyer Dan Viets said about the Missouri Department of Corrections' decision. Mizanskey had met with the parole board just last Thursday.

After two decades in prison, Mizanskey became eligible for parole in May when Missouri Gov. Jay Nixon (D) commuted his life sentence, while granting pardons to five other nonviolent offenders who had already completed their punishments. Parole was an option that Mizanskey did not have previously because he had been sentenced as a "prior and persistent drug offender" under Missouri's three strikes law, which was repealed last year.

All three of Mizanskey's offenses involved marijuana. He was given a life sentence after a conviction for attempting to sell about six pounds of pot in a 1993 police sting operation.

A Change.org petition seeking clemency for Mizanskey had received nearly 400,000 signatures. "Great news everyone... Jeff is coming home this month!" said a post Monday on the Free Jeff Mizanskey Facebook page. "We want everyone to know how greatful [sic] we are for all the support received throughout this whole ordeal."

Marijuana offenses, mainly involving simple possession, account for roughly half of all drug-related crimes. According to a recent report from the American Civil Liberties Union, 88 percent of the more than 8 million marijuana arrests between 2001 and 2010 were for possession alone. There were more arrests in the U.S. for marijuana possession in 2011 than for all violent crimes combined, according to the FBI's uniform crime report. The ACLU report also found significant racial disparities in the arrest patterns. While black and white Americans use marijuana at about the same rates, blacks were nearly four times more likely than whites to be arrested for marijuana during the years examined.

August 11, 2015 in Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Wednesday, August 05, 2015

Shouldn't front-runner Donald Trump be asked about drug war and federal marijuana policies at GOP debate?

Now that all the GOP polls show a significant number of Republican voters are taking Donald Trump's candidacy seriously, I think it would be especially valuable at tomorrow's big GOP debate for candidate Trump to be asked some seriously hard questions about federal laws and policies.  Back in June, I had this pose on my marijuana reform blog highlighting that Trump had once suggested full legalization would be the only way to "win" the drug war, and I wondered aloud "Just what is Donald Trump's position now on modern marijuana reforms (and the modern drug war)?".  Especially now that Trump is, according to the polls, the GOP front-runner, I think this would be an especially good issue to bring up with him.

Notably, a few media outlets have just recently picked up on Trump's not-so-clear and not-at-all-consistent statements about federal drug policy:

As I have explained in a few prior posts both here and at Marijuana Law, Policy & Reform (some of which I have linked below), I think there are lots of good reasons to ask all the GOP candidates lots of good questions about lots of different criminal justice reform issues. But, especially in light of Trump's prior comments and what at times seems to be his libertarian-leaning, less-government-regulation, pro-jobs economic messaging, I would be especially interested now to hear what he thinks about some of the positive economic development news emerging from Colorado and other jurisdictions in conjunction libertarian-leaning, less-government-regulation marijuana and related drug war reforms.

A few recent related posts:

August 5, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)

Latest tea leaves concerning Senator Grassley's coming sentencing reform bill

This new Wall Street Journal piece, headlined "Senator Holds Key to Sentencing Changes," provides a few more juicy details about what we might expect to emerge from the sentencing reform work of the critical chair of the Senate Judiciary Committee, Charles Grassley. Here are the excerpts that most caught my eye:

Now, as lawmakers in both parties and both chambers of Congress show greater interest in easing policies blamed for prison crowding, Mr. Grassley is presiding over final negotiations of a group he tasked with integrating assorted criminal justice proposals into a single package. Mr. Grassley, a four-decade veteran of Congress, said he plans to unveil a bill after Labor Day.

The most likely outcome of the talks, according to aides and lawmakers involved in the negotiations, is legislation that would combine programs to reduce recidivism and create more opportunities for early release with provisions giving judges some discretion to sentence below the mandatory minimum for certain drug defendants. “I think it’s fair to say there are going to be a lot less people that are going to have mandatory minimums apply, but it’s not going to be this across-the-board cut,” Mr. Grassley said, warning that drastic reductions in sentences would weaken penalties for serious offenders.

Mr. Grassley’s position — which fellow committee members say has evolved since March, when he warned of a “leniency industrial complex” — reflects a readjustment on criminal justice among many conservatives, who increasingly are joining Democrats in calling for legislation aimed at reducing mass incarceration....

Among Republicans, the party’s libertarian wing was first to back sentencing overhaul, and more mainstream Republicans have followed.... Mr. Grassley, once seen as a chief roadblock to change, is in a position to convert that momentum into a bill committee members say could clear the Senate this year with bipartisan support now rare in a deeply divided Congress.

But it isn’t clear whether committee members with fervent objections to mandatory minimum sentences will sign onto a proposal shorn of the more sweeping changes they envision. More substantial reductions were embraced in a bill that cleared the committee last year but never made it to the floor. Its sponsors, Sens. Richard Durbin (D., Ill.) and Mike Lee (R., Utah), this year reintroduced the bill, which would halve mandatory minimum sentences for some nonviolent drug crimes and give judges more flexibility to hand down sentences below the mandatory minimum.

“He’s offering a different approach than we started with,” Mr. Durbin said of the agreement Mr. Grassley is brokering. “It’s a much different approach, and it’s a harder approach.” Still, he said, he is encouraged that Mr. Grassley would entertain any legislation revising sentencing law. “Let me tell you, he was not even at the table initially, and now he’s at the table,” Mr. Durbin said.

A compromise bill may still encounter conservative resistance. One of the committee’s more cautionary voices is that of Sen. Jeff Sessions (R., Ala.), who said tough criminal code has been at the heart of a reduction in violent crime.

On the other side of the Capitol, Mr. Boehner has endorsed a bill by Reps. Jim Sensenbrenner (R., Wis.) and Bobby Scott (D., Va.) that would loosen some sentencing requirements, while also addressing probation and recidivism....

Some in Iowa have sought to hold Mr. Grassley to account for the ballooning prison population. A state report released last year estimated that Iowa’s prison population could swell 39% over the next decade. In May of this year, the Des Moines Register, Iowa’s largest newspaper, urged Mr. Grassley not to stand in the way of changes to federal sentencing laws. Home on a recent weekend, Mr. Grassley faced questions about criminal justice at two town meetings — a surprise, he said, as it marked the first time this year constituents had raised the topic. “They were happy that it looked like we were going to get a bill,” he said.

As I explained in recent prior posts here and here reporting on the latest Grassley reform forecast, I am fearful that politics and process may continue to impede any significant federal sentencing reform from getting done before the end of the year.  Because it would appear that Senator Grassley has now invested considerably in developing a reform bill to his liking and given that he is a critical player for any reform proposals moving forward, I sincerely hope that the bill he unveils in September is perceived to be "good enough" to garner the support needed from all quarters to have a real chance at becoming law.

Some prior related posts:

August 5, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Monday, August 03, 2015

US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act

2015_RtC_FSAAs reported in this official USSC news release, today "the United States Sentencing Commission submitted to Congress its report assessing the impact of the Fair Sentencing Act of 2010, which among other things reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine." Here are highlights of an encouraging report via the news release:

Chief Judge Patti B. Saris, Chair of the Commission, said: “We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine. All this occurred while crack cocaine use continued to decline.”

To assess the impact of the FSA, the Commission analyzed external data sources and undertook statistical analyses of its own federal sentencing data spanning before and after the enactment of the FSA. Among other things, the study shows that:

• Many fewer crack cocaine offenders have been prosecuted annually since the FSA, although the number is still substantial;

• Crack cocaine offenders prosecuted after the FSA are, on average, about as serious as those prosecuted before the FSA;

• Rates of crack cocaine offenders cooperating with law enforcement have not changed despite the reduction in penalties; and,

• Average crack cocaine sentences are lower, and are now closer to average powder cocaine sentences.

The full report, which runs almost 100 pages including all its materials is available at this link. The USSC's website now has this terrific page with various report-related materials and links for easy consumption of all the data in the report.

August 3, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 29, 2015

Sentencing reform group propounds "The Dangerous Myths of NAAUSA"

In this post last week, I linked to this white paper produced by the National Association of Assistant US Attorneys titled "The Dangerous Myths of Drug Sentencing 'Reform'."  This week has now brought this response from Families Against Mandatory Minimums (FAMM) titled in full, "The Dangerous Myths of NAAUSA: A Response to the National Association of Assistant U.S. Attorneys’ Paper Titled 'The Dangerous Myths of Drug Sentencing Reform'."  Here are excerpts from the executive summary, introductory paragraph and conclusion of this FAMM response paper:

The National Association of Assistant U.S. Attorneys (NAAUSA), which represents neither the U.S. Department of Justice nor a significant percentage of assistant U.S. attorneys, opposes mandatory minimum sentencing reform on the basis of several unfounded and patently false claims.  This paper rebuts those claims with data and facts...

The National Association of Assistant U.S. Attorneys (NAAUSA) recently released a white paper in which it purports to respond to the myths of sentencing reform advocates.  Before addressing its substantive points, it is important to keep in mind who NAAUSA represents — or, more important, who it does not represent.  NAAUSA does not represent federal prosecutors or the offices in which its members work.  The U.S. Department of Justice (DOJ), which represents all federal prosecutors and prosecutes all federal cases, supports mandatory minimum drug sentencing reform.  NAAUSA does not even speak for all assistant U.S. attorneys; only 28 percent of the nation’s assistant U.S. attorneys are members of NAAUSA, according to the group’s website.  Former federal and state prosecutors now serving in Congress, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Patrick Leahy (D-VT), are leading sponsors of federal mandatory minimum sentencing reforms opposed by NAAUSA.

While advocates from all points of the political spectrum, law enforcement groups, members of both parties of Congress, House Speaker John Boehner, the Department of Justice, and President Barack Obama all agree that significant mandatory minimum drug sentencing reform is needed — and the sooner the better — NAAUSA is using scare tactics and patently false and unsupported claims to attempt to maintain a status quo that indiscriminately incarcerates thousands of nonviolent drug offenders for decades, at the cost of billions of dollars that could be better invested in law enforcement and crime prevention.  NAAUSA wants to maintain a sentencing system that is unjust, ineffective, expensive, harmful to families, and depleting law enforcement of limited resources. NAAUSA may call its opposition to mandatory minimum drug sentencing reform many things, but it cannot be called a serious effort to improve public safety.

July 29, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, July 27, 2015

"Mr. Chairman, the president’s clemency power is beyond dispute"

The title of this post is the headline of this new commentary published in The Hill authored by Samuel Morison, who formerly served as a staff attorney in the Justice Department’s Office of the Pardon Attorney.  The piece responds to the curious letter sent by House Judiciary Committee Chair Bob Goodlatte and fellow Republican committee to AG Lynch (discussed here) expressing "deep concern" for how the President has (finally) started to make serious use of his constitutional clemency powers.  Here are excerpts (with links included):

Goodlatte and his colleagues are certainly entitled to take issue with Obama’s decision to grant a measure of relief to persons sentenced under a set of laws that are widely viewed to have been, in practice if not by design, racially discriminatory and unjust.  But their constitutional claims are so illiterate that it is difficult to tell whether they expect the attorney general to take them seriously. 

The chairman’s criticism ignores settled practice stretching back to the beginning of the Republic.  Throughout American history, presidents have granted executive clemency to “specific classes of offenders” on dozens of occasions, from George Washington’s pardon of the Whiskey Rebels in 1795 to George H.W. Bush’s pardon of the Iran-Contra defendants in 1992.  Perhaps more to the point, in the early 1960s, John F. Kennedy and Lyndon B. Johnson commuted the sentences of several hundred prisoners serving mandatory minimum sentences under the Narcotics Control Act of 1956, without objection by Congress.

The historical lack of controversy shouldn’t be surprising.  Under our tripartite system of government, an act of executive clemency in no sense “usurps” legislative or judicial authority.  Rather, in the words of Justice Oliver Wendell Holmes, it “is a part of the Constitutional scheme.  When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.”  The president’s pardoning authority is therefore limited only by the text of the Constitution itself, not by the transitory terms of the criminal code.  Indeed, that was the Framers’ point in giving the power to the president in the first place, to act as a check on the other branches.

To be sure, the president’s systematic exercise of the pardon power to benefit “specific classes of offenders” has not gone entirely unchallenged by Congress.  But the Supreme Court long ago resolved this dispute in favor of Obama’s authority to redress the injustices entrenched by the current federal sentencing regime.  In the aftermath of the Civil War, President Andrew Johnson issued a series of amnesty proclamations that restored the civil rights of former Confederate sympathizers.  This was enormously controversial at the time, not least because it undermined the Radical Republican’s designs for the post-war reconstruction of Southern society.

In the ensuing legal battle, the Supreme Court repeatedly struck down Congress’s attempts to constrain the president’s pardoning authority.  In 1866, the Court held, without qualification, that “[t]his power of the President is not subject to legislative control.  Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.  The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” 

The Court also rejected the effort to draw a false distinction between pardons granted to specific individuals on a case-by-case basis and a pardon granted to a class of persons by means of an amnesty proclamation, precisely the claim that House Republicans are making against Obama.  The president is therefore authorized to grant a general amnesty without congressional sanction, protestations to the contrary notwithstanding.

Finally, there is no reason to doubt that the president can grant clemency because of his own policy judgment about a particular law.  As one conservative federal judge recently opined, it is a “settled, bedrock principle of constitutional law” that “the president may decline to prosecute or may pardon because of the president’s own constitutional concerns about a law or because of policy objections to the law.” 

The historical irony, of course, is that a presidential power forged in a bitter political dispute over the property rights of Confederate rebels is now being used to afford a measure of justice to federal drug offenders, who are disproportionately African-American.  Turnabout, I suppose, is fair play.  But the president’s power is beyond dispute.

A few prior recent related posts:

July 27, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, July 22, 2015

DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."

Download (6)I have noticed lots of good crime and punishment reporting at BuzzFeed lately, and this new lengthy piece discussing an interview with US Deputy Attorney General Sally Yates is the lastest must-read. It is headlined "Justice Department: You Don’t Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail," and here are excerpts:

The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this: If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can’t flip drug criminals, they can’t go after more powerful and dangerous drug criminals. And if they can’t go after those criminals, they can’t hope to make a dent in the illegal drug trade.

This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they’d lose their ability to net the biggest fish.

Sally Quinlan Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it. “There were some out there who were saying, and I understand this, ‘We’ll never get another defendant to cooperate with us, they’re not going to plead guilty, they’re not going to cooperate with us. We’ve lost our leverage, we won’t be able to work our way up the ladder,’” Yates, the deputy attorney general, told BuzzFeed News. “But that’s turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”

Yates has been saying for years that mandatory minimums — which don’t apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren’t necessary to put high-level drug offenders behind bars. Now she’s overseeing the process by which prosecutors move away from mandatory minimums, and she’s one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.

It’s a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder’s term as Attorney General, and now it’s a central part of Yates’ argument to lawmakers that it’s time to change the nation’s sentencing laws.

As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.

As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she’ll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.

Yates has drawn the praise of advocacy groups who say she’s able to connect with Republicans in a way the Justice Department often wasn’t able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration. Criminal justice is a top policy goal for Holder’s successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down by first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.

“People get used to doing things a certain way. You ask folks to do something differently, there’s naturally some discomfort with that among certain prosecutors, I think,” she said. “So change is hard.” Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor....

Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions.  Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama’s recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.

“There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective,” she said. “The prosecutors who were involved, they were following the department policies that were in place at the time. And so I’m not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it’s time that our legislation evolved as well.”

Yates says prosecutors are open to changes, and she’s got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will be continue to make the changes it can to the way the war on drugs is fought even if Congress can’t.

For Yates, the movement is a personal one. “At the risk of sounding really corny now, I’m a career prosecutor. I’ve been doing this for a very long time. And I believe in holding people responsible when they violate the law,” she said. “But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people how are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that’s what this sentencing reform is really about.”

UPDATE: The speech that DAG Yates delivered today on these topics is available at this link. I will likely highlight a few notable passages in a later post.

July 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, July 18, 2015

"Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"

The title of this post is the headline of this notable new piece in U.S. News & World Report. Here are excerpts:

Nervous federal prosecutors attempted to rally opposition Friday to criminal sentencing reform in response to President Barack Obama’s week of issuing commutations and making pro-reform speeches....

“The federal criminal justice system is not broken,” Steve Cook, the association's president, said at a lightly attended event in the nation's capital. “What a huge mistake it would be,” he said, to change sentencing laws.

Cook predicted the crime rate would rise and prosecutors would lose a tool to extract information if laws were made more lenient. He also denounced reform proponents for saying nonviolent offenders are being ensnared by tough Clinton-era drug laws. “They have misled the public every time they say, 'We’re talking about nonviolent drug offenders,'” he said. “Drug trafficking is inherently violent. … If you’re not willing to engage in violence [then] you will be out of the business quickly, or worse.”

Cook said the small number of inmates whose sentences have been shortened by Obama – the president has issued 76 drug crime commutations total, 46 of them this week – shows there’s not much of a problem with people serving unreasonably long sentences.

Rather than focus on reducing sentences, he said, the government should consider building more prison facilities. “Do I think it would be a good investment to build more [prisons]? Yeah, no question about it!” he said....

Molly Gill, government affairs counsel at the advocacy group Families Against Mandatory Minimums, says Cook’s assertion the crime rate would rise after sentencing reform is a “demonstrably false claim and a shameful scare tactic.” In Michigan, New York and other states, she says, crime rates did not spike after mandatory minimums were repealed....

Cook, who was joined by two other federal prosecutors, made much of his speech Friday about societal ills associated with drug addiction, from babies going through withdrawal to people stealing from their families and dying from overdoses and car accidents. “There’s a pyramid of individuals who are affected by [drug dealers],” he said. “Many view [drug trafficking] as more serious than murder.”

He declined to say if state-legal recreational marijuana businesses and regulators in Colorado and Washington state should face marijuana-related mandatory minimums for breaking federal law.

Cook’s colleagues did not speak at the news conference. He described the event as the first of its kind by the group, which claims to represent 1,500 assistant U.S. attorneys, about 30 percent of the total.

Former President Bill Clinton, one of the leaders responsible for establishing inflexible penalties, this week said doing so led to the imprisonment of a lot of "minor actors for way too long." The association views his reversal as “misinformed,” Cook said: “We think he was right before.”

July 18, 2015 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)

Friday, July 17, 2015

Gov Christie joins growing chorus of GOP leaders urging reform of "broken" criminal justice system

Download (15)As highlighted by this Politico report, headlined "Chris Christie calls for ‘fresh approach’ to criminal justice," the only GOP presidential candidate with a long history as a federal prosecutor has now joined the ever-growing group of mainstream Republican voices advocating for significant criminal justice reform. Here are the basics of what the New Jersey Governor has to say on this front:

Chris Christie, decrying the large number of Americans in prison, on Thursday said it’s time to fix what he called “a broken criminal justice system.”

“Today, our prisons contain more people than any other nation in the world – 25 percent of the world’s prisoners,” the New Jersey governor and 2016 presidential candidate said in a speech in Camden, New Jersey. “I believe in American exceptionalism, but that’s not an achievement I think any of us want.”

Christie’s call for action came almost at the same time as President Barack Obama’s tour of a federal prison in El Reno, Oklahoma on Thursday as part of his administration’s push for criminal justice reform.

In recent months, a series of deaths of unarmed black men by white law enforcement officers, and resulting riots, has sparked a national discussion about racial tensions, policing, and the U.S. prison system. It’s given a boost to a rare bipartisan push on justice reform, especially mandatory minimum sentences that disproportionately affect minority communities.

On Thursday, Christie talked about the importance of getting violent criminals off the streets, but he said harsh prison sentences don’t solve everything. “Peace on our streets is more than just the absence of violence. Justice isn’t something we can jail our way to. Justice is something we have to build in our communities,” Christie said.

He also framed his argument in terms of conservative values. “I happen to be pro-life, and I believe very strongly in the sanctity of life,” Christie said. “But I believe that if you’re going to be pro-life, then you ought to care about life beyond the womb. An unborn child is life. But life is also that 16 year-old addict lying on the floor of the county lockup.”

Specifically, Christie pointed to his own record in New Jersey as a path forward. He said New Jersey’s drug court program works, calling it a policy that keeps people out of prison and saves money. He said if he becomes president he will replicate it on the national level.

“Drug court is about making every one of our citizens long-term productive members of society again – because we should want that for everyone,” Christie said. He said that first time offenders of non-violent crimes should get treatment and non-custodial sentencing options. He also said that when people are put behind bars there needs to be a plan for rehabilitation for when they get out.

I am particularly intrigued to hear a GOP Presidential candidate with a long history as a federal prosecutor (and whose campaign slogan is "telling it like it is") now calling our criminal justice system broken. Another long-time former federal prosecutor, Bill Otis, has frequently taken to Crime & Consequences to complain when former Attorney General Eric Holder said our current system is broken. And in a comment dialogue following his latest posting in this arena, Bill seemed to suggest that some establishment Republicans may only be pretending that they share such a view in order to get campaign dollars from the Koch brothers. But given Gov. Christie's personal background and campaign themes, I would be really surprised if he would now be saying the system is broken if he did not really believe it.

July 17, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, July 16, 2015

"From a First Arrest to a Life Sentence"

Sharanda-1mThe title of this post is the headline of this new Washington Post article, which carries the subheadline "Clemency is the only way out for the thousands of nonviolent drug offenders serving life terms in federal prison." Here are excerpts from the start of the lengthy piece, as well as some details of the profiled LWOP defendant's case:

Sharanda Jones — prisoner 33177-077 — struggled to describe the moment in 1999 when a federal judge sentenced her to life in prison after her conviction on a single cocaine offense.  She was a first-time, nonviolent offender.

“I was numb,” Jones said in an interview at the Carswell women’s prison here. “I was thinking about my baby.  I thought it can’t be real life in prison.” Jones, who will turn 48 next week, is one of tens of thousands of inmates who received harsh mandatory minimum sentences for drug offenses during the crack-cocaine epidemic, and whose cases are drawing new attention....

Because of her role as a middle woman between a cocaine buyer and supplier, Jones was accused of being part of a “drug conspiracy” and should have known that the powder would be converted to crack — triggering a greater penalty.

Her sentence was then made even more severe with a punishment tool introduced at the height of the drug war that allowed judges in certain cases to “enhance” sentences — or make them longer.  Jones was hit with a barrage of “enhancements.”

Her license for a concealed weapon amounted to carrying a gun “in furtherance of a drug conspiracy.”  Enhancement.

When she was convicted on one count of seven, prosecutors said her testimony in her defense had been false and therefore an “obstruction of justice.”  Enhancement.

Although she was neither the supplier nor the buyer, prosecutors described her as a leader in a drug ring.  Enhancement.

By the end, Jones’s sentencing had so many that the federal judge had only one punishment option.  With no possibility of parole in the federal system, she was, in effect, sentenced to die in prison.

Jones almost certainly would not receive such a sentence today.  Federal sentencing guidelines in similar drug cases have changed, in particular to end disparities in how the courts treat crack cocaine vs. powder cocaine.  And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment.  In the past decade, they gave lower sentences by an average of one-third the guideline range, according to the U.S. Sentencing Commission.

But a lingering legacy of the crack epidemic are inmates such as Jones.  About 100,000 federal inmates — or nearly half — are serving time for drug offenses, among them thousands of nonviolent offenders sentenced to life without the possibility of parole, according to the American Civil Liberties Union.  Most are poor, and four in five are African American or Hispanic.

In the spring of 2014, then-Attorney General Eric H. Holder Jr. — who had called mandatory minimum sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison.  They had to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime.  They must have demonstrated good conduct in prison.  And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Jones applied. It has been a halting process, however.  Only 89 prisoners of the more than 35,000 who have filed applications have been freed.  They include 46 inmates who were granted clemency on Monday by Obama.  Jones wasn’t among them....

On Aug. 26, 1999 — after days of testimony about drug deals by people nicknamed “Weasel,” “Spider,” “Baby Jack” and “Kilo,” and a dramatic moment when Jones’s quadriplegic mother was wheeled into the courtroom — the jury acquitted Jones of all six charges of possession with intent to distribute crack cocaine and aiding and abetting.  But they found her guilty of one count of conspiracy to distribute crack cocaine.

Although no drugs were ever found, U.S. District Judge Jorge Solis determined that Jones was responsible for the distribution of 30 kilograms of cocaine.  He arrived at that number based on the testimony of the co-conspirators — the couple who received sentences of seven and eight years, and the Houston dealer, who got 19.5 years.  All have since been released.

The judge determined that Jones knew or should have known that the powder was going to be “rocked up” — or converted to crack.  Using a government formula, the prosecutor said that the 30 kilograms of powder was equal to 13.39 kilograms of crack cocaine.  He then added 10.528 kilograms of crack cocaine that the prosecutors said had been distributed in Terrell and was linked to Jones’s brother.  (The U.S. Court of Appeals for the 5th Circuit affirmed the conviction, but said there was “barely” any evidence of Jones’s connection to the crack distributed in Terrell.)

The judge’s calculation made Jones accountable for 23.92 kilograms of crack.  That, added to the gun and obstruction enhancements, as well as Jones’s role as an “organizer,” sealed her sentence under federal rules that assign numbers to offenses and enhancements.  The final number — 46 — dictated the sentence, leaving the judge no discretion.

“Under the guidelines, that sets a life sentence, mandatory life sentence,” Solis said at a hearing in November 1999.  “So, Ms. Jones, it will be the judgment of the court that you be sentenced to the custody of the U.S. Bureau of Prisons for a term of life imprisonment.” Solis declined to be interviewed. Said McMurrey: “In light of the law and the guidelines and what the court heard during the trial, I know Judge Solis followed the law. He’s a very fair man.”

The sentencing scheme that sent Jones to prison has been widely denounced by lawmakers from both political parties.  And sentences have been greatly reduced for drug offenses. But the differing approaches over time have led to striking disparities.

One illustration: The Justice Department announced last month that one of Colombia’s most notorious drug traffickers and a senior paramilitary leader will serve about 15 years in prison for leading an international drug trafficking conspiracy that imported more than 100,000 kilograms of cocaine into the United States.

The jurors who found Jones guilty were never told about the life sentence, which came months after the trial.  Several of them, when contacted by The Washington Post, were dismayed. “Life in prison? My God, that is too harsh,” said James J. Siwinski, a retired worker for a glass company.  “That is too severe.  There’s people killing people and getting less time than that.  She wasn’t an angel.  But enough is enough already.”

July 16, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 15, 2015

Fascinating new drug guideline resentencing opinion from Judge Jack Weinstein

Judge Jack Weinstein is a justifiably legendary federal judge (whom, I must note, will be turning 94 in a few weeks).  Among the reasons Judge Weinstein is justifiably legendary is his ability to author remarkable (and remarkable long) opinions on an array of federal legal subjects.  Today I learned of his latest such opinion in in US v. Alli-Balogun, 92–CR–1108 (E.D.N.Y July 15, 2015) (available for download below).  Here is how the opinion starts:

The case is a remarkable one.  Though the drug case was nasty, the long-term imprisonment, by today’s standards, was excessive.  Defendant has served 273 months in prison while his wife and children established high status employment in banking and medicine.  See Hr’g Tr., July 15, 2015. Throughout his incarceration, he has maintained close contact with his family. Id. This resentence provides an opportunity to rectify, in modest degree, an unnecessarily harsh sentence imposed in crueler times.

Download Weinstein § 3582(c)(2) OPINION on RESENTENCING

The next 70+ pages goes on to discuss (and break a little new ground) the defendant's motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) and his challenge to his his conviction under 28 U.S.C. § 2255. (For the record, the defendant bats .500 in his efforts.)

July 15, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration"

The title of this post is the title of this notable new article by multiple authored recently posted on SSRN.  Here is the abstract:

The United States is in the midst of a public health crisis: Every year, well over 24,000 Americans die from opioid overdose.  This staggering death toll is equivalent to a weekly jumbo jet crash. After a decade of rapid growth, overdose caused by prescription opioids and heroin now tops the accidental death rankings, beating out automobile accidents, AIDS, and other high-profile killers.  Overdose does not discriminate, cutting across all geographic, economic, and racial divides.  But some groups are especially vulnerable. This article is dedicated to one such group: individuals re-entering the community from correctional settings.  In the immediate two weeks after release, people in this group are almost 130 times more likely to die of an overdose than the general population.

It is easy to cast post-incarceration substance use — and consequent overdose — as the re-entering individual’s character weakness or a propensity towards reckless behavior. Nevertheless, modern addiction science reframes such relapse as a foreseeable consequence of the chronic nature of substance use disorders.  This scientific evidence also provides clear guidance on how most of the resulting fatalities can be prevented.  This article considers the creation of fatal overdose risk among formerly incarcerated individuals as an unacceptable collateral harm emanating from criminal justice involvement.

In order to address this largely overlooked public health problem, we explore a range of legal channels that can help persuade the state (broadly construed) to address a risk to which it substantially contributes.  We consider a number of doctrinal approaches, guided by the belief that spending time behind bars must not translate to a death sentence for so many Americans.  Whether as a part of possible legal actions or an action agenda on its own right, we present a number of programmatic interventions and policy reforms that may alleviate this crisis.  Our analysis also highlights the potential role of the Affordable Care Act (ACA) in facilitating overdose prevention before, during and post-incarceration. This agenda is especially timely given the current move by federal and state governments towards releasing large numbers of individuals incarcerated on drug-related charges to ease prison over-crowding or as a result of legal reforms, pardons, or exonerations.

In Section I, we provide an overview of the opioid overdose epidemic and the special vulnerability among criminal justice-involved individuals.  In Section II, we examine the scientific evidence on prevention measures that should be, but are currently rarely deployed to address this vulnerability.  In Section III, we explore various legal theories that could be invoked in efforts to motivate government actors to take a greater responsibility for preventing post-incarceration overdose deaths.  In Section IV, we cover additional mechanisms to motivate institutional change.  We conclude by outlining a policy and programmatic agenda for reducing the vulnerability of criminal justice-involved individuals to opioid overdose.

July 15, 2015 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Monday, July 13, 2015

Prez Obama commutes sentences for 46 federal drug prisoners (with a video message)

Neil Eggleston, Counsel to the President, has this new White House Blog posting titled "President Obama Announces 46 Commutations in Video Address: 'America Is a Nation of Second Chances'." Here is the text of the posting, with links worth following:

As a former Assistant U.S. Attorney and criminal defense attorney, I'm well acquainted with how federal sentencing practices can, in too many instances, lead nonviolent drug offenders to spend decades, if not life, in prison.  Now, don't get me wrong, many people are justly punished for causing harm and perpetuating violence in our communities.  But, in some cases, the punishment required by law far exceeded the offense.

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.  Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

In a video released today, the President underscored the responsibility and opportunity that comes with a commutation.

The President also shared his thoughts in a personal letter written to each of the 46 individuals receiving a commutation today.

In taking this step, the President has now issued nearly 90 commutations, the vast majority of them to non-violent offenders sentenced for drug crimes under outdated sentencing rules. 

While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.  Tune in tomorrow as the President shares additional thoughts on how, working together, we can bring greater fairness to our criminal justice system while keeping our communities safe in an address to the NAACP.

A list of the 46 lucky individuals receiving clemency today can be found here. A too quick review of the list suggests that the vast majority of those receiving clemency today were convicted of crack offenses, though I did notice a couple of marijuana offenders in the group. 

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, New crack statute and the FSA's impact, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Prez Obama with big plans (finally!!) to prioritize criminal justice reform efforts

Images (11)Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article).  In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms.  As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.  

But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform.  This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:

The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.

President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.

Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma.  He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.

Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.

Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.

“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....

Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.

The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.

The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....

Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”

There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.

While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”

Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.

The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)