Thursday, December 03, 2015
"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"
The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:
The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed. The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....
There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely. David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements. And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”
851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence. What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...
Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”
There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions. If prosecutors so decided, they would trigger life without parole upon conviction.
On March 5, 2013, prosecutors offered Kupa a plea deal. The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months. With good time credits, Kupa could serve seven years and ten months, Gleeson wrote. But Kupa had just one day to think the agreement over, and he didn’t accept it. And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.
December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Fourth Circuit to consider en banc whether it can consider new claims from federal prisoner with wrong old LWOP sentence in Surratt
In this post a few months ago, I noted the lengthy split Fourth Circuit panel ruling in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here), in which a majority of the panel decided it could not consider a challenge to a wrongful LWOP sentence for a federal drug defendant. As the majority put it: "We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence. However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below."
Now, thanks to a helpful reader, I have learned that yesterday the full Fourth Circuit decided via this order to now hear the Surratt case en banc. For anyone interested in federal habeas law, this now become a must-watch case.
Federal statutory sentencing reform not going to happen until 2016 ... if at all
This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:
It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.
"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.
Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.
The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....
Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....
While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.
Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"
While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."
Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."
Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”
I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.
December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)
Wednesday, December 02, 2015
Two very different (and very depressing) stories that are distinct imprints of drug war carnage
The famous image uploaded with this post has a message that has stuck with me since I first saw it many decades ago. And that message, highlighting the unhealthy carnage that always results from war, quickly came to mind as I notices these two distinct must-read stories this morning. Here are the headlines/links and key paragraphs from both stories:
The Alabama Justice Project has obtained documents that reveal a Dothan Police Department’s Internal Affairs investigation was covered up by the district attorney. A group of up to a dozen police officers on a specialized narcotics team were found to have planted drugs and weapons on young black men for years. They were supervised at the time by Lt. Steve Parrish, current Dothan Police Chief, and Sgt. Andy Hughes, current Asst. Director of Homeland Security for the State of Alabama. All of the officers reportedly were members of a Neoconfederate organization that the Southern Poverty Law Center labels “racial extremists.” The group has advocated for blacks to return to Africa, published that the civil rights movement is really a Jewish conspiracy, and that blacks have lower IQ’s. Both Parrish and Hughes held leadership positions in the group and are pictured above holding a confederate battle flag at one of the club’s secret meetings.
The documents shared reveal that the internal affairs investigation was covered up to protect the aforementioned officers’ law enforcement careers and keep them from being criminally prosecuted. Several long term Dothan law enforcement officers, all part of an original group that initiated the investigation, believe the public has a right to know that the Dothan Police Department, and District Attorney Doug Valeska, targeted young black men by planting drugs and weapons on them over a decade. Most of the young men were prosecuted, many sentenced to prison, and some are still in prison. Many of the officers involved were subsequently promoted and are in leadership positions in law enforcement. They hope the mood of the country is one that demands action and that the US Department of Justice will intervene.
As addiction specialists look back on the current heroin addiction crisis — which the U.S. Center for Disease Control and Prevention calls the "worst drug overdose epidemic in [US] history" — most agree that the whole operation started out as the sort of marketing scheme Don Draper might have dreamed up. "[The marketing effort for opioid sales] was a promotional campaign unlike we have ever really seen," says Dr. Andrew Kolodny, the chief medical officer for the Phoenix House treatment centers and co-founder of Physicians for Responsible Opioid Prescribing. "Drug reps were going to family care doctors, and insisting that OxyContin had no real risks — only benefits. What they were selling was the idea that pain was a disease, and not a symptom."...
What followed was not all that surprising. Many grew addicted to the opioids, and when the prescriptions ran out, they turned to heroin because of its availability and relatively low cost. The Mexican drug cartels saw this trend and promptly began growing their opium plants, which they consciously made purer and less expensive. And those cartels targeted the suburbs, where those introductory OxyContin prescriptions were being filled — and where the money was.
According to the National Institute on Drug Abuse, some 2,000 people died in 2001 from heroin overdose in the U.S. By 2013, that number had climbed to about 8,000. Coinciding with that rise: the number of opioid deaths caused by prescription drugs like OxyContin. About 6,000 deaths from opioid prescription drug overdose in 2001 spiked to roughly 15,000 by 2013. Over two million Americans are currently addicted to opioids, according to the National Survey on Drug Use and Health, and 467,000 are addicted to heroin. What makes those numbers even more startling: Four out of five heroin users reportedly started out on opioids.
The issues and problems discussed in both theses stories are, obviously, about a whole lot more than just the impact of criminal prohibition and intense criminal prosecutions of persons involved with certain controlled substances. Nevertheless, stories like these remind me that the long-run "war on drugs," like so many other wars, has produced an array of unexpected consequences and collateral damages that must should not be overlooked whether we consider whether and how to continue to use massive criminal justice systems to deal with drug use and abuse.
Friday, November 27, 2015
Spotlighting why ending the drug war could make a big dent in mass incarceration
This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration. Here is how it starts (with links from the source):
Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons. But some researchers have pushed back against this notion in recent years. They point out that drug offenders account for only about 1 in 5 state and federal inmates. The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent. Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.
But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison. Rothwell calls this "stock and flow."
He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison. The reason for the difference? Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals. So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.
"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes. "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."
Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes. Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society. A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.
Monday, November 23, 2015
US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines
Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues. The latest Judge Bennett opus arrived today via US v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below). As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:
Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines. The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum. That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences. In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh. I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.
So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress. For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power. Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum. Feauto is not such a defendant.
I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing. As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782. Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.
November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
NY Times editorial: "Cut Sentences for Low-Level Drug Crimes"
This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:
Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.
The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts. That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.
The new sentencing-reform bills now moving through the Senate and House would help reduce some of the longest mandatory-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.
But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections. Less than 14 percent were sentenced for using or threatening to use violence, or directing its use. And only 14 percent were sentenced for having a high-level or leadership role in a drug operation, the study found....
A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.
One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days. Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.
Some recent related posts:
- House Judiciary Committee advances its Sentencing Reform Act of 2015 for full House consideration
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- Will new House Speaker Paul Ryan significantly help getting federal sentencing reform enacted?
- "Prison Time Surges for Federal Inmates"
- "Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"
Wednesday, November 18, 2015
"Some Women Charged Under Tennessee’s Hated Fetal Assault Law Say It’s Not So Bad"
The title of this post is the headline of this interesting new Nashville Public Radio piece (found by my great research assistant) that provides interesting perspectives on a controversial Tennessee criminal law responding to modern drug abuse concerns. Here are excerpts:
Tennessee has attracted international attention for making it a crime to give birth to a drug-dependent baby. This means women addicted to pain pills or heroin can be charged with assault to a fetus. After less than two years in effect, the controversial law must be renewed, or it will expire. While the measure has drawn worldwide disdain from women's health and civil liberty advocates, some of the women who’ve been charged say the threat of jail-time was a wake-up call.
“If I didn’t go through what I went through, I’d probably be down that same road right now," says 26-year-old mother Kim Walker of Johnson City. "But now I’m a totally different person. And I’m on the good road, not the bad road.” Last year, Walker went into labor at home.... "One push and he was out," she says. “My husband delivered him. Didn’t know he was drug exposed until we got to the hospital," she says. "When we got to the hospital, they took him straight from my hospital room. I didn’t get to see him, didn’t get to hold him, nothing.”
He spent 28 days in the neonatal intensive care unit, withdrawing from the painkillers Walker was taking illegally. Walker had to take a drug test, which she failed. Then she was charged with assault. But like most women, she chose treatment in order to avoid conviction. Rehab was a rocky road. There’s been a relapse along the way. But in late October, Walker gave birth to another son — Jack — this time, drug-free.
The idea for Tennessee’s fetal assault law didn’t originate from doctors, nurses or social workers. It came from law enforcement and legislators. In fact, the medical community lined up in resistance, saying punishment is no way to treat addiction — especially when young mothers are singled out.
Lisa Tipton falls somewhere in the middle. “I don’t feel the law is perfect," she says. "I don’t feel the law is necessarily the solution...but we were absolutely bombarded.” Tipton runs a non-profit treatment center called Families Free in Johnson City. This part of Northeast Tennessee is the epicenter of the state's — and even the country's — problem with neonatal abstinence syndrome....
Tipton recognizes that Tennessee’s law has a bad rap among women’s health advocates and civil liberty groups. But she says she’s not hearing great alternatives from the naysayers. “I would really invite them to go in our area, into the trailer parks where they may be living with several family members who also use drugs and sometimes abuse them, and their children as well. To go into the jails and talk to the women whose lives have been destroyed by drugs and whose children are being raised by somebody else," Tipton says. "Help come up with some very real-life and real-world solutions that are going to change the lives of these women.”
It isn't clear the fetal assault law is doing what it was supposed to do. In the Tri-Cities, more women have been prosecuted with this misdemeanor than anywhere else in the state. Sullivan County District Attorney Barry Staubus, who pushed for the law in the first place, has charged more than 20 women this year. And yet the mountainous region is still home to the largest number of babies being born needing to detox.
State Rep. Terri Lynn Weaver, R-Livingston, sponsored the statute. She says it needs more time and should be renewed. “I’m just going to stand my ground on the fact that I believe wholeheartedly this bill does help and does help these women that are in situations that never would have gotten the help they needed,” she says.
Some women say they were too scared to get prenatal care for fear of going to jail. Even getting that medical help is tricky. Some OBGYNs prefer drug treatment to come first. And only a handful of treatment centers in the state even accept pregnant women and their added complexities.
"I’m not really sure what I feel about the law right now. I kinda of have mixed emotions about it,” says Sabrina Sawyer of Kingsport. Her nine-month-old son was born with drug-dependency and had to spend several days in the NICU. He's happy and healthy now, which brings to light another important point from critics: It's unclear whether there are any long-term health effects from NAS.
Sawyer, who has two other young children, says she didn't know about Tennessee's fetal assault law until a caseworker walked into her hospital room. “I was terrified. I had never been in any kind of trouble," she says. "It sent me through an emotional mess for a while.” Sawyer was charged with assault but chose to get treatment and avoid prosecution. While torn about the effectiveness of the law, she also admits she'd likely still be using if going to jail hadn't been a possibility.
Tuesday, November 17, 2015
Terrific original reporting by The Crime Report on challenging extreme policing bordering on entrapment
Regular readers know I am a big fan of all the criminal justice reporting work done at The Crime Report (TCR), and a new two-part series authored by Adam Wisnieski at TCR showcases why. In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena:
Here is an excerpt from the first of these two important pieces:
A TCR investigation found 126 motions to dismiss a case on the grounds of “outrageous government conduct” filed during an 18-month period between 2014 and August 2015. In those 126 cases, only seven were initially successful. Three of those were overturned on appeal, and an appeal on the fourth is still pending — though it is expected to be denied.
In the rare occurrences where a claim of “outrageous government conduct” is successful, something profound happens: police behavior changes. In one instance this year, the motion’s success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution. (More on this below.)
Nevertheless, the motion’s lack of success raises troubling questions for the future of American law enforcement. Legal scholars and critical judges say the near-overwhelming failure of courts to rule aggressive police behavior is “outrageous” when such motions arise has created a climate in which such behavior is likely to increase — while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans’ constitutionally enshrined right to due process.
Friday, November 13, 2015
"Alternative Courts and Drug Treatment: Finding a Rehabilitative Solution for Addicts in a Retributive System"
The title of this post is the title of this new paper by Molly Webster now available via SSRN. Here is the abstract:
Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.
Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s Opportunity Probation with Enforcement represent efforts to address treatment within the court system. This Note argues that certain policies are more likely to benefit drug-addicted defendants than others, including procedural justice, predictable sanctions, and an increased focus on treatment. It also posits that qualitative studies measuring long-term success of drug treatment programs should be commissioned to ensure that drug courts utilize the most effective treatment policies that promote rehabilitative ideals.
Thursday, November 12, 2015
"Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"
The title of this post is the title of this notable new data analysis from The Urban Institute. Here are snippets from the start and end of the short and reader-friendly report:
Almost half (45 percent) of the 95,305 individuals in federal prison for drug offenses are in the lowest two criminal history categories, indicating minimal prior convictions and a low risk of recidivism.2 In fact, over one-quarter (26 percent) have no prior criminal history.
Further, over three-quarters of all individuals in federal prison for drug offenses have no serious history of violence before the current offense. More than half have no violent history, and nearly a quarter have minor histories of violence, such as a simple assault and other crimes that do not typically lead to serious injury....
At the end of the FY 2014, individuals serving drug sentences accounted for 49 percent of the total federal prison population. Though recent policy changes have helped reverse upward trends in population size, the Urban Institute’s Federal Prison Population Forecaster shows that continuing population declines will require significantly shorter lengths of stay for drug offenses. Congressional leaders are considering legislative action that would reduce some mandatory minimum penalties and grant judges greater discretion to sentence individuals to shorter prison stays for drug offenses. While the exact impact of these bills is unknown, lasting reductions in the size of the federal prison population will only come from big cuts in lengths of stay for drug offenses. The Task Force will be considering such reforms as part of its deliberations and expects to build on the efforts under way in Congress.
Tuesday, November 10, 2015
Urging AG Lynch to ensure DOJ policies on § 851 enhancements are followed consistently
I was pleased over this weekend to be part of an effort spearheaded by Prof Kate Stith to write to Attorney General Loretta Lynch to express concerns about federal prosecutors' charging practices in drug cases. The short letter sent yesterday to AG Lynch on this matter, which can be downloaded below, gets started and ends as follows:
We write to urge you to issue renewed guidance to all U.S. Attorneys to reiterate and enhance compliance with former Attorney General Eric Holder’s September 2014 Memorandum (“Holder Memo”) instructing U.S. Attorneys not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty. Recent statements by Steven H. Cook, head of the National Association of Assistant United States Attorneys (NAAUSA), as well as field research being conducted by students at Yale Law School, suggest that at least some federal prosecutors are not consistently complying with this policy. This creates prosecutor-driven disparities that are plainly unwarranted....
[T]here is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial. Last week, the Washington Post reported that Steven Cook of NAAUSA “said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations. The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office. Defense attorneys ‘understand that this tool is still in our pocket.’”
Though the study is still ongoing, preliminary inquiries and data analysis by students at Yale Law School likewise reveal inconsistent application of the Holder Memos. Moreover, prosecutors in many districts continue to wield the explicit or implicit threat of § 851 enhancements to induce defendants to plead guilty. In numerous districts across the country, it is common knowledge that a prosecutor will almost certainly file an enhancement if a defendant elects to go to trial. Such practices contravene the spirit and letter of the Holder Memos.
We urge you to issue renewed guidance to all U.S. Attorneys in order to ensure compliance with and consistent application of the August 2013 and September 2014 Holder Memos. Additionally, in order to foster and facilitate consistent application of federal sentencing laws nationwide, we recommend that you (1) include these policies in the U.S. Attorneys’ Manual, and (2) require U.S. Attorneys to report when they file § 851 enhancements, and their reasons for doing so pursuant to the Holder Memos.
Sunday, November 08, 2015
"How Doctors Helped Drive the Addiction Crisis"
The title of this post is the headline of this extended New York Times op-ed authored by Richard Friedman, which reinforces my long-standing view that drug use/abuse and related social ills are most properly considered and addressed as public health concerns rather than criminal justice issues. Here are excerpts:
There has been an alarming and steady increase in the mortality rate of middle-aged white Americans since 1999, according to a study published last week. This increase — half a percent annually — contrasts starkly with decreasing death rates in all other age and ethnic groups and with middle-aged people in other developed countries.
So what is killing middle-aged white Americans? Much of the excess death is attributable to suicide and drug and alcohol poisonings. Opioid painkillers like OxyContin prescribed by physicians contribute significantly to these drug overdoses.
Thus, it seems that an opioid overdose epidemic is at the heart of this rise in white middle-age mortality.... Driving this opioid epidemic, in large part, is a disturbing change in the attitude within the medical profession about the use of these drugs to treat pain....
[S]tarting in the 1990s, there has been a vast expansion in the longterm use of opioid painkillers to treat chronic nonmalignant medical conditions, like lowback pain, sciatica and various musculoskeletal problems. To no small degree, this change in clinical practice was encouraged through aggressive marketing by drug companies that made new and powerful opioids, like OxyContin, an extendedrelease form of oxycodone that was approved for use in 1995....
The consequences of this epidemic have been staggering. Opioids are reported in 39 percent of all emergency room visits for nonmedical drug use. They are highly addictive and can produce significant depressive and anxiety states. And the annual direct health care costs of opioid users has been estimated to be more than eight times that of nonusers.
But most surprising — and disturbing — of all is that there is actually very weak evidence that opioids are safe or effective for the longterm treatment of nonmalignant pain. So how did they become so popular for these uses? A large review article conducted between 1983 and 2012 found that only 25 of these were randomized controlled trials and only one study lasted three months or longer. The review concluded that there was little good evidence to support the safety or efficacy of longterm opioid therapy for nonmalignant pain....
What is really needed is a sea change within the medical profession itself. We should be educating and training our medical students and residents about the risks and limited benefits of opioids in treating pain.... It is physicians who, in large part, unleashed the current opioid epidemic with their promiscuous use of these drugs; we have a large responsibility to end it.
This commentary fittingly highlights that, in modern times, doctors and Big Pharma are the most significant (and potentially dangerous) drug dealers for most Americans. It also informs my own disinclination to defer completely to doctors and Big Pharma when they express concern about the potential harms of marijuana reform or to trust politicians when they suggest doctors and Big Pharma should guide us through modern marijuana reform debates. When it comes to pain management and the developments of safe drugs to treat chronic pain, doctors and Big Pharma have a track record in recent decades that should prompt much more suspicion than confidence.
Some prior related posts:
- "Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."
- Gendered perspective on Ohio's challenges with opioids and prison growth
- "Prisons Are Making America's Drug Problem Worse"
- Following the money behind sustaining pot prohibition
- "Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration"
Saturday, November 07, 2015
Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade
I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000. I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.
I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity). I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.
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:
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
As 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 agoI can still remember how that mary jane used to make me smileAnd I knew if Ohio had a chanceWe could make those politicians danceAnd maybe they'd be hoppy for a whileBut February made me shiverWith every complaint drug warriors deliveredBad news in the reform planI couldn't be sure who was the manI can't remember if I criedWhen I read about the monopolies triedBut something touched me deep insideThe day the marijuana prohibition died
So bye, bye, American Pot ProhibitionDrove my Prius to the pollsbut the polls gave me confusing choicesAnd them good ole boys were drinking whiskey 'n ryeSingin' this'll be the day prohibition diesThis'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:
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.”
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:
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:
- Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws
- Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?
- Notable developments in dispute over meaning and application of Section 538 limiting DOJ funding
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:
- Who says reefer madness is dead, eh?
- Reefer madness or state law sanity?: Ohio AG sues Toledo after passage of local marijuana decriminalization measure
- First poll on Ohio ballot issues suggests marijuana legalization (and litigation) likely
- Could NFL's survival depend on medical marijuana breakthrough?
- California wisely includes mandated DUI research in recent medical marijuana reforms
- "Lessons from Washington and Colorado: The Potential Financial Gains of Recreational Marijuana to Canada"
- In first major Democrat Prez debate, Bernie Sanders says he'd likely vote for marijuana legalization; Hillary Clinton still has her finger in the air
- Latest swing-state polling shows huge support for ending blanket marijuana prohibition
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:
From Kent Scheidegger at Crime & Consequences, "Gallup: Solid Majority Continue to Support Death Penalty"
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.
Thursday, October 15, 2015
"Ending the war on drugs would not end mass incarceration" ... but it would help, perhaps a lot
The 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.
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.
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.
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:
- Reefer madness or state law sanity?: Ohio AG sues Toledo after passage of local marijuana decriminalization measure
- Latest swing-state polling shows huge support for ending blanket marijuana prohibition
- "Big Marijuana Reforms Included in Senate Spending Package"
- "A first for the marijuana industry: A product liability lawsuit"
- California wisely includes mandate DUI research in recent medical marijuana reforms
- Could marijuana reform in part explain application and enrollment boost at University of Colorado Law School?
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.
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:
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"
The 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.
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.
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.
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.
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.
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:
From The Altantic here by Ta-Nehisi Coates, "The Black Family in the Age of Mass Incarceration: American Politicians are now eager to disown a failed criminal-justice system that’s left the U.S. with the largest incarcerated population in the world. But they've failed to reckon with history. Fifty years after Daniel Patrick Moynihan’s report 'The Negro Family' tragically helped create this system, it's time to reclaim his original intent."
From The Huffington Post here by Steven Brill, "America's Most Admired Lawbreaker: Over the course of 20 years, Johnson & Johnson created a powerful drug, promoted it illegally to children and the elderly, covered up the side effects and made billions of dollars. This is the inside story."
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.
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.
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."
Friday, August 28, 2015
Despite copious reform talk, big and tough federal drug sentencing system churns on
As 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.
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.
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.
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.
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.
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.
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.
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: