Thursday, March 26, 2015
New report documents huge drop in Colorado marijuana arrests since legalization
While the impact, both good or bad, of marijuana law reform is now widely discussed and debated, there is still relatively little hard reliable data about the public health and economic consequences of these reforms. But this new report from the Drug Policy Alliance, headlined "Marijuana Arrests in Colorado After the Passage of Amendment 64," highlights that legalization in one state has had a profound impact on arrest data. This DPA press release provides an overview and summary of the report, and here are excerpts:
The report compiles and analyzes data from the county judicial districts, as well as various law enforcement agencies via the National Incident Based Reporting System (NIBRS). The report’s key findings include:
- Since 2010, marijuana possession charges are down by more than 90%, marijuana cultivation charges are down by 96%, and marijuana distribution charges are down by 99%.
- The number of marijuana possession charges in Colorado courts has decreased by more than 25,000 since 2010 – from 30,428 in 2010 to just 1,922 in 2014.
- According to raw data from the NIBRS, drug-related incidents are down 23% since 2010, based on a 53% drop in marijuana-related incidents....
- Marijuana distribution charges for young men of color did not increase, to the relief of racial justice advocates wary of a ‘net-widening’ effect following legalization. The black rate for distribution incidents dropped from 87 per 100,000 in 2012 to 25 per 100,000 in 2014.
- Racial disparities for still-illegal and mostly petty charges persist for black people when compared to white people, primarily due to the specific increase of charges for public use combined with the disproportionate rates of police contact in communities of color. The marijuana arrest rate for black people in 2014 was 2.4 times higher than the arrest rates for white people, just as it was in 2010.
- The report also reveals a decline in synthetic marijuana arrests, presumably because people are less likely to use synthetic marijuana when marijuana itself is no longer criminalized.
“It’s heartening to see that tens of thousands of otherwise law-abiding Coloradans have been spared the travesty of getting handcuffed or being charged for small amounts of marijuana,” said Art Way, Colorado State Director for the Drug Policy Alliance. “By focusing on public health rather than criminalization, Colorado is better positioned to address the potential harms of marijuana use, while diminishing many of the worst aspects of the war on drugs.”
“The overall decrease in arrests, charges and cases is enormously beneficial to communities of color who bore the brunt of marijuana prohibition prior to the passage of Amendment 64,” said Rosemary Harris Lytle, Regional Chair of the NAACP. “However, we are concerned with the rise in disparity for the charge of public consumption and challenge law enforcement to ensure this reality is not discriminatory in any manner.”
“What is often overlooked concerning marijuana legalization is that it is first and foremost a criminal justice reform,” said Denise Maes, Public Policy Director for the ACLU of Colorado. “This report reminds us of how law enforcement and our judiciary are now able to better allocate time and energy for more pressing concerns.”
Some prior related posts:
- "The Injustice of Marijuana Arrests"
- New report details arrests and NYC police time spent on low-level marijuana offenses
- "Marijuana Possession Arrests Exceed Violent Crime Arrests"
- Would legalizing marijuana be a huge step toward a less racialized criminal justice system?
- "The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests" (huge ALCU report on racial disparities in marijuana arrests)
March 26, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Saturday, March 21, 2015
Prez Obama promising to exercise "pardon power and clemency power more aggressively"
This new Huffington Post article reports on an interview with President Barack Obama in which his clemency efforts past and present were discussed. Here are highlights:
President Barack Obama plans to grant clemency to federal offenders "more aggressively" during the remainder of his presidency, he said in a sit-down interview with The Huffington Post on Friday.
Obama has faced criticism for rarely using his power to grant pardons and commutations. In December, he commuted the sentences of eight federal drug offenders, including four who had been sentenced to life. That brought his total number of commutations to 18.
Obama said he had granted clemency so infrequently because of problems in the Justice Department's Office of the Pardon Attorney. The former head of that office, who was appointed during the George W. Bush administration, resigned in April amid criticism from criminal justice advocates. "I noticed that what I was getting was mostly small-time crimes from very long ago," Obama said. "It'd be a 65-year-old who wanted a pardon to get his gun rights back. Most of them were legitimate, but they didn't address the broader issues that we face, particularly around nonviolent drug offenses. So we've revamped now the DOJ office. We're now getting much more representative applicants."
Many of those new applications came from what's known as the Clemency Project 2014, announced when the Office of the Pardon Attorney head resigned. That project, which operates independently of the government, is intended to help DOJ sort through a huge number of applicants to figure out who meets specific criteria laid out by the administration. But the process has been slow, and some criminal justice advocates are growing frustrated. Since the project was announced, more than 35,000 inmates -- roughly 16 percent of the total federal prison population -- have submitted applications....
Obama said Friday that the public could see the results of the project soon. "I think what you'll see is not only me exercising that pardon power and clemency power more aggressively for people who meet the criteria -- nonviolent crimes, have served already a long period of time, have shown that they're rehabilitated -- but also we're working with Democrats and Republicans around criminal justice reform issues," Obama said.
The president said it was "encouraging" to see criminal justice reform and support for the elimination of some mandatory minimum sentences as a "rare area where we're actually seeing significant bipartisan interest," with some libertarians and conservatives concerned about costs joining with Democrats. "If we can get some action done at the federal level, that will make a difference in terms of how, I think, more and more states recognize it doesn't make sense for us to treat nonviolent drug offenses the way we do," Obama said.
As I have said many times before, the Obama Administration has generally be much better at talking the talk than at walking the walk on these sorts of sentencing matters. Nevertheless, I view these comments as additional reason to believe there will be many more clemency grants by President Obama in the coming year or two than in the previous five or six.
Wednesday, March 18, 2015
"Law & Tactics for a Market-Reality Narcotics Policy"
The title of this post is the title of this notable new article by Mark William Osler now available via SSRN. Here is the abstract:
The War on Drugs seems to be ending, leading to a crucial question: What comes next? Legalization of narcotics (marijuana aside) is unlikely, and the pursuit of broad incarceration to create deterrence or incapacitation has been largely disavowed. However, drug use continues to be a profound social problem that must be confronted.
This article argues for the aggressive use of asset forfeiture to capture cash flow to core sources in order to systemically disrupt narcotics networks. Importantly, such a project would steer police efforts away from capturing people, drugs, or the profits retained by drug dealers and instead target the lifeblood of the narcotics business, which is proceeds flowing back to mass producers, importers, and major wholesalers of drugs.
This tactic would address the continuing narcotics problem without mass incarceration or the problems associated with seizing small amounts of profit through forfeitures. Fortunately, the necessary tools are already embedded in existing federal statutes; all that is left to do is to use them wisely in a new and more effective way.
March 18, 2015 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack
Thursday, March 12, 2015
"Prisons Are Making America's Drug Problem Worse"
The title of this post is the headline of this notable new Politico piece. Here are excerpts that reinforce my fear that one of the biggest problems with the modern drug war is that we are fighting it so very poorly:
After two decades of rapidly rising incarceration rates — rates that continued to rise even as crime sat at record historic lows — America today has nearly 2.2 million adult inmates in local, state and federal jails and prisons, including about 300,000 who have a history of heroin addiction. The BOP spends $110 million annually on drug treatment programs for approximately 80,000 inmates identified as dependent on narcotics. But for the 10,000 or so federal inmates dependent on heroin or other opioids, millions of those dollars are currently spent on outdated, ineffective approaches that wrongly prohibit medication-assisted therapies — approaches that, in other words, fail to help prisoners addicted to opioids during their sentence and ultimately return them afterwards to society as addicted as they were when they went into jail.
It doesn’t have to be that way. A recent study of opioid-dependent inmates leaving Rikers Island jail in New York City showed that nearly nine out of ten inmates who were not medicated relapsed within a month, as opposed to just 2 out of 5 inmates who were on medication-assisted treatment. The difference to society between those two numbers — in terms of health outcomes, reduced crime, and improved employment stability — is huge.
Science notwithstanding, the U.S. criminal justice system has resisted medication-assisted therapy, with only a few large urban jails (e.g. New York City, San Francisco, Albuquerque) and a handful of state prisons such as those in Rhode Island and Vermont opting to use it. Yet most major correctional experts, including the U.S. Bureau of Justice Assistance (BJA), the National Re-Entry Resource Center and the National Commission on Correctional Health Care, all recommend increasing the availability of medication-assisted therapy for opioid dependence in the country’s jails and prisons. The U.S. Bureau of Justice Assistance (BJA) recently concluded that the effects of MAT are “many times greater” than behavioral therapies without medications.
Beyond the correctional world, the World Health Organization, UNAIDS, the United Nations Office on Drug Policy, and the National Institute on Drug Abuse (NIDA) all agree that people dependent on heroin and other opioids should have access to medication-assisted therapy. In a recent publication, NIDA stated, “Taking these medications as prescribed allows patients to hold jobs, avoid street crime and violence, and reduce exposure to HIV.” The White House Office of Drug Control Policy calls MAT combined with behavioral therapy the “standard of care” for opioid dependence and recently announced that drug courts, which offer treatment as an alternative to prison for some criminal offenders, will be required to offer MAT in order to continue to receive federal dollars.
Nevertheless, despite the evidence to the contrary, the Federal Bureau of Prisons prohibits such treatments entirely for “routine” (non-detox) purposes. Corrections officials frequently cite security concerns to justify denying buprenorphine and methadone therapy to inmates, fearing the medicine will be diverted to other prisoners — despite the fact that these issues can be resolved with tighter security measures and closer staff supervision (the prison systems of Western Europe, Scotland, Canada and even Iran can attest to that).
Monday, March 09, 2015
Bipartisan federal medical marijuana bill to be introduced Tuesday
As reported in this new Washington Post entry, headlined "In a first, senators plan to introduce federal medical marijuana bill," a trio of notable Senators have interesting plans for mid-day Tuesday:
In what advocates describe as an historic first, a trio of senators plan to unveil a federal medical marijuana bill Tuesday. The bill, to be introduced by Senators Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.), would end the federal ban on medical marijuana.
The Compassionate Access, Research Expansion and Respect States (CARERS) Act would “allow patients, doctors and businesses in states that have already passed medical marijuana laws to participate in those programs without fear of federal prosecution,” according to a joint statement from the senators’ offices. The bill will also “make overdue reforms to ensure patients – including veterans receiving care from VA facilities in states with medical marijuana programs – access the care they need.” The proposal will be unveiled at a 12:30 p.m. press conference on Tuesday, which will be streamed live here. Patients, their families and advocates will join the senators at the press conference.
The announcement was met with praise by advocates. “This is a significant step forward when it comes to reforming marijuana laws at the federal level,” Dan Riffle, director of federal policies for the Marijuana Policy Project, said in a statement. “It’s long past time to end the federal ban,” said Michael Collins, policy manager for the Drug Policy Alliance, said in a statement. Both describe the introduction of the bill as a first for the Senate....
In December, Congress for the first time in roughly a decade of trying approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws — a significant victory for proponents of the practice.
Potential Republican presidential candidates Rand, Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) have all said they support states’ rights to legalize pot, though they themselves disagree with the policy.
Cross-posted at Marijuana Law, Policy and Reform
Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"
Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:
What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street? To my knowledge, this question has never been polled by any respected organization.
I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:
A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas. The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....
The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:
• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.
• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....
“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin. “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”
March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, March 04, 2015
Three of "Kettle Falls Five" convicted on least serious federal marijuana charges in Washington
This AP story reports on the notable mixed verdict in a high-profile federal prosecution of a group of defendants in Washington state who claimed they were growing marijuana only for medical purposes. Here are the details:
Three people were found guilty Tuesday of growing marijuana, but they also were exonerated of more serious charges in a widely-watched federal drug case in a state where medical and recreational marijuana is legal.
The three remaining defendants of the so-called Kettle Falls Five were all found guilty of growing marijuana. But a jury found them not guilty of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.
U.S. District Court Judge Thomas Rice set sentencing for June 10.
The defendants were Rhonda Firestack-Harvey, her son Rolland Gregg and his wife, Michelle Gregg. Firestack-Harvey wiped away tears as she declared victory in the case. "The truth comes out," she said, noting that the defendants were growing marijuana for medical purposes and had cards permitting that use. "We would have loved to be exonerated of all charges."
However, there was no doubt that federal drug agents found marijuana plants growing on their property near Kettle Falls, she said.
Federal prosecutors did not speak with reporters after the verdict, which followed a full day of deliberations by the jury. Prosecutors asked that the three be taken into custody until sentencing, but Rice declined.
"It's a victory, but it's bittersweet," said Jeff Niesen, an attorney for Firestack-Harvey. "They've been convicted of a federal crime." But while the tougher charges carried sentences of a decade in prison, growing marijuana should bring a much lower sentence, Niesen said.
On Monday, attorneys for the defendants asked jurors to throw out what he described as an overzealous and overreaching case. Attorney Phil Tefleyan criticized the government's prosecution of the three, who contend they were growing medical marijuana for personal use in a case that has drawn wide attention over the government's willingness to prosecute marijuana growers. "They roped in this innocent family," Tefleyan told jurors.
Assistant U.S. Attorney Earl Hicks told jurors Monday that Washington state's stance on marijuana doesn't matter. He says the question for the jury is, "Is it legal under federal law?"
The defendants contend they didn't distribute the marijuana. But they were barred from telling jurors their claim that they grew the marijuana only for personal medical use. That issue can be raised during sentencing. Tefleyan said the government could not point to a single sale of the drug by the family. He said the evidence seized by drug enforcement agents during a raid in August 2012 — 4 pounds of marijuana and about $700 in cash — didn't support the conclusion the family was dealing.
The government has argued the family grew the plants in violation of federal law. "I don't believe there's any question in this case that we're talking about the manufacture of marijuana," Hicks told the jury.
Tefleyan placed blame for those plants on Jason Zucker, a former defendant who cut a plea deal last week, just before the trial started. Zucker, 39, testified Friday that he fronted $10,000 in costs to get the operation up and running. Zucker's plea deal called for a 16-month sentence....
Larry Harvey, 71, was recently dismissed from the case after being diagnosed with terminal pancreatic cancer in December.
I believe that these defendants' acquittal on gun charges means that that they are not subject to any mandatory minimum sentencing terms, and the judge's decision to allow them to be free awaiting sentencing suggests to me that they will likely not receive significant (or perhaps any) prison time for these offenses. In addition, these defendants might have various grounds for appealing to the Ninth Circuit (although they many not want to bother if they get relatively lenient sentencing terms).
Prior related posts:
- Family of medical marijuana patients in Washington turn down plea and set up notable federal trial
- New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution
Cross-posted at Marijuana Law, Policy and Reform
Monday, March 02, 2015
"A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges"
The provocative title of this post is the provocative title of this new article authored by US District Judge Mark Bennett now available via SSRN. Here is the abstract:
A federal district court judge who has sentenced more than 4000 defendants reflects on federal sentencing and its role in mass incarceration. The focus of the article is on federal sentencing in crack cocaine cases and policy disagreements with the United States Sentencing Guidelines (Guidelines) in drug trafficking cases. The article explores the U.S. Supreme Court cases in Kimbrough v. United States, United States v. Spears, and Pepper v. United States, the only U.S. Supreme Court cases that address sentencing judges’ policy disagreements with the guidelines. Ironically, or perhaps serendipitously, the author was the sentencing judge in both Spears and Pepper, where he was reversed a whopping 5 times by the U.S. Court of Appeals for the Eighth Circuit (twice by an en banc court) before both defendants’ sentencing positions were vindicated by the U.S. Supreme Court.
The article takes exception to two Third Circuit judges who have argued in law review articles that federal sentencing judges should be concerned about "legislative backlash" if they sentence outside the now advisory guidelines. In the arc of the history of federal sentencing and its impact on mass incarceration, we are perched at a cresting point where the gravity of reason and our Nation’s experience with mass incarceration hopefully will pull towards greater justice in sentencing.
AG Holder provides Congress a sentencing reform to-do list
This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms. Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":
Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws. This presents a historic opportunity to improve the fairness of our criminal justice system. But unless we act quickly, we risk letting the moment pass.
The Justice Department has sought to be an early innovator on this front. A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice.... Preliminary results from this effort are extremely encouraging....
Last year also witnessed the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.
But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own. Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.
First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair. Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.
Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.
Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions. These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.
Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses. These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.
While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause. And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.
In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress. As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen." Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong."
I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act. Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front. In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).
Thursday, February 26, 2015
US Sentencing Commission releases report on LWOP sentences in federal system
I am intrigued and pleased to see that today the US Sentencing Commission has released this effective (reader-friendly) new report titled "Life Sentences in the Federal System." The entire 20-page report is a must read for anyone (like me) who fears we pay too much attention to much attention to a handful of death sentences and too little attention to hundreds of LWOP sentences. Here is how this new report gets started:
Life imprisonment sentences are rare in the federal criminal justice system. Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to their country of origin. Yet in fiscal year 2013 federal judges imposed a sentence of life imprisonment without parole on 153 offenders. Another 168 offenders received a sentence of a specific term of years that was so long it had the practical effect of being a life sentence. Although together these offenders represent only 0.4 percent of all offenders sentenced that year, this type of sentence sets them apart from the rest of the offender population. This report examines life sentences in the federal system and the offenders on whom this punishment is imposed.
There are numerous federal criminal statutes that authorize a life imprisonment sentence to be imposed as the maximum sentence. The most commonly used of these statutes involve drug trafficking, racketeering, and firearms crimes. Additionally, there are at least 45 statutes that require a life sentence to be imposed as the minimum penalty. These mandatory minimum penalties generally are required in cases involving the killing of a federal official or other government employee, piracy, or repeat offenses involving drug trafficking or weapons. In fiscal year 2013, 64 of the 153 offenders who received a sentence of life imprisonment were subject to a mandatory minimum penalty requiring the court to impose that sentence.
February 26, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Wednesday, February 25, 2015
Passage of Smarter Sentencing Act is reportedly "very important" to Prez Obama
This notable new USA Today piece, headlined "Bipartisan sentencing bill gets White House support," reports that President Obama indicated at a meeting yesterday with congressional leaders that he was interested and eager to have the Smarter Sentencing Act become law. Here are the details:
President Obama is throwing his support behind a bipartisan proposal to change the nation's sentencing laws by cutting many mandatory minimum sentences in half. That commitment came out of a meeting with 16 members of Congress at the White House Tuesday night, called by the president to gather their ideas on how to overhaul the criminal justice system.
Members of Congress who attended said the main topic of conversation was the Smarter Sentencing Act, a bill sponsored by Rep. Raul Labrador, R-Idaho, that would reduce mandatory minimum sentences for non-violent drug offenders.
Obama supported a similar bill in the last Congress, but the current proposal goes even further. Mandatory life sentences would be reduced to 20 years — effectively cutting life sentences in half because the current life sentence averages 40 years.
Another change: Those convicted of importing drugs into the United States would not be eligible for the reduced sentences unless they were merely couriers whose role was limited to transporting or storing drugs or money.
Sen. Mike Lee, R-Utah, who has introduced a companion bill in the Senate, said Obama "focused specifically" on the Smarter Sentencing Act "and his desire to have it passed."
"It was showing us that this is very important to him, and he has the resources of his administration that he's been willing to put out there," Lee told KSL Radio in Salt Lake City Wednesday.
White House spokesman Frank Benenati said Wednesday that the White House is still reviewing the text of the legislation, but that "it certainly appears" that the Labrador proposal meshes with the president's aims to "make our communities safer, treat individuals more justly and allow more efficient use of enforcement resources."
Obama has signaled his support for sentencing changes as recently as Monday, when he praised governors who had signed similar bills at a White House dinner. "Last year was the first time in 40 years that the federal incarceration rate and the crime rate went down at the same time," Obama said. "Let's keep that progress going, and reform our criminal justice system in ways that protect our citizens and serves us all."
Labrador said that's an important point for Obama to make. "The main obstacle is the perception that sentencing reform will lead to more crime. And I think the opposite is true," he said. "The concern is that we want to continue to be tough on crime, but we want to be smart on crime."...
House Judiciary Chairman Bob Goodlatte, R-Va., who also attended the meeting with Obama, would not comment on the meeting. He's been cool to sentencing changes in the past, but Sen. Cory Booker, D-N.J., said he thought Goodlatte seemed "remarkably open" to the issue.
Tuesday, February 24, 2015
Two notable and timely new reform reports from The Sentencing Project
Via an e-mail from The Sentencing Project (reprinted in part below), I received this summary (with links) to two notable new reports from the group:
[Here are] two new reports from The Sentencing Project documenting changes in criminal justice policy in 2014 and successful advocacy campaign strategies in conservative state environments. The reforms highlighted in these reports represent approaches that lawmakers and advocates can consider to address sentencing policy and collateral consequences at the state level.
The State of Sentencing 2014 highlights policy changes in 30 states and the District of Columbia in both the adult and juvenile justice systems, including:
Scaling back sentences for low-level drug offenses
Reducing barriers to reentry, including employment restrictions and bans on public assistance
Eliminating juvenile life without parole
State Criminal Justice Advocacy in a Conservative Environment documents successful advocacy strategies employed in campaigns in Indiana, Missouri, and Texas. In these states, advocates achieved the following reforms:
- Reduced enhanced penalties in drug-free zones in Indiana by shrinking the limit of zones from 1,000 feet to 500 feet, and eliminating all zones except those around schools and parks
- Modified Missouri’s federal lifetime ban on food stamp benefits for persons with felony drug convictions
- Closed two Texas prison facilities: the Dawson State Jail and the Mineral Wells Pre-Parole Transfer Facility
February 24, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, February 22, 2015
Early report on the early impact of Proposition 47 in California
This new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November. The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:
In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.
On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.
Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.
Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.
Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.
"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."
The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.
Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.
Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.
Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.
Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."
The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.
Friday, February 20, 2015
More from ACSBlog's "symposium on racial inequalities in the criminal justice system"
Last week in this post I noted that the ACSBlog kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System." This week brought these additional published posts in this series, al of which should be of special interest to sentencing law and policy fans:
Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
Long-time readers and most federal sentencing policy gurus know about the long-time discussion of the Smarter Sentencing Act. The SSA seemingly had lots of bi-partisan support when got through the Senate Judiciary Committee in the last Congress, but the drug warriors helped ensure it did not get any further.
Now we have a new Congress with new leadership in the Senate and, as reported here, a new introduction of a new version of the SSA, the Smarter Sentencing Act of 2015. In part because new Senate Judiciary Chair Charles Grassley has been a vocal opponent of any significant statutory drug sentencing reform, I am not especially optimistic that the new SSA has a much better chance of passage than the old SSA. But, as the question in the title of this post highlights, the new SSA appears to have an especially prominent new advocate, as demonstrated by this press release from the office of Senator Ted Cruz tited "Sen. Cruz: Smarter Sentencing Act Is Common Sense." Here is an excerpt from Senator Cruz's remarks last week during the introduction of the new SSA:
The issue that brings us together today is fairness. What brings us together is justice. What brings us together is common sense. This is as diverse and bipartisan array of members of Congress as you will see on any topic and yet we are all unified in saying commonsense reforms need to be enacted to our criminal justice system. Right now today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system, find themselves subject to sentences of many decades for relatively minor non-violent drug infractions. We’ve seen the impact of these kind of reforms in the states, the states are laboratories of democracy. My home state of Texas implemented similar reforms and from 2005 the state of Texas has seen a 22 percent decrease in crime and a 12 percent decrease in expenditures on criminal justice....
All of us agree, if you have violent criminals, if you have criminals who are using guns, who are using violence, who are dealing drugs to children, the criminal justice system should come down on them like a ton of bricks. But at the same time we need to recognize that young people make mistakes, and we should not live in a world of Le Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.
There surely are issues about which Senator Cruz and I might not always agree (even though were educated around the same time at the same two higher-education institutions). But I completely agree with his view that the Smarter Sentencing Act is a common sense reform seeking to address the real problem that "today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system [and] find themselves subject to sentences of many decades for relatively minor non-violent drug infractions."
Notably, Senator Cruz in the past has not let GOP establishment figures stop him from being an aggressive and persistent voice for legal reforms he considers important. I am hopeful that Senator Cruz will fight the good fight on the SSA and other sentencing reform measures so as not to let old establishment folks like Senator Grassley keep the SSA and other proposals from coming up for a vote in the Senate.
A few recent and older posts on the "conservative politics" of federal sentencing reform:
- A positive perspective on possible prison reform emerging from Congress
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
- Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?
- "Criminal Sentencing Reform: A Conversation among Conservatives"
- Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
- Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
- Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms
February 20, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, February 17, 2015
"How to Talk About Sentencing Policy — and Not Disparity"
The title of this post is the title of this terrific new piece by Nancy Gertner just published by the Loyola University Chicago Law Journal. I consider most everything Prof (and former Judge) Gertner writes about sentencing to be a must-read, and these passages from the start of the piece reinforce my sense that this new commentary is especially timely and important:
I want to talk about why I don’t want to discuss sentencing disparity, why this is an issue far, far less important than issues of sentencing fairness, of proportionality, of what works to address crime. Disparity-speak has sucked the air out of all interesting and meaningful discussion of criminal justice reform for the past several decades....
The mythology of rampant sentencing disparity without guidelines has driven American sentencing for decades. The problem is that you cannot build a rational sentencing regime if the only important question is this one: Am I doing the same thing in my courtroom that you are doing in yours, even if neither of us is imposing sentences that make sense, namely, that work to reduce crime? You cannot talk about disparity unless you understand the context—disparity in sentencing with respect to what? What purposes? What characteristics? Similarly situated with respect to what? The offense? The chances of deterrence? Amenability to treatment?...
To eliminate sentencing disparity, the United States Sentencing Commission and Congress chose to treat drug quantity the same across contexts, contexts that were very different. I want to talk about those contexts and the content of a just sentence. How do we deal with drug addiction? What is the punishment that makes sense? When is drug treatment appropriate in lieu of imprisonment? I want to talk about problem solving courts, reentry programs, and meaningful diversions. How can neuroscience help us craft treatment? What evidence based practices should we implement? What works?
And, above all, I want to talk about how to meaningfully undo the catastrophe of mass incarceration in this country, the catastrophe that we have created with our dual emphasis on eliminating disparity, and imprisonment as a cure all. It is a “one size fits all” approach, and that “size” has been ever more imprisonment. I want to talk about our uniformity-focused, criminal-record emphasis, incarceration-obsessed criminal justice policy.
February 17, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Friday, February 13, 2015
Is a federal judge about to declare unconstitutional federal marijuana law? And then what?
The question in the title of this post is prompted by this Reuters report on an on-going federal criminal trial in California. Here is why:
A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.
Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.
"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.
The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.
In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.
Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.
But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."
Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.
Cross-posted at Marijuana Law, Policy and Reform
Sunday, February 08, 2015
Highlighting the role of prosecutorial activity in modern mass incarceration
I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration. The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:
Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high. It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012. But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.
What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place. Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be. If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.
In a conversation with Slate, Pfaff explains his theory....
Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.
A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.
Q: Why would that be?
What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.
As regular readers likely know, I am a big fan of John Pfaff's research. Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities. (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)
That said, in part because John's analysis is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges." In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year. But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s. These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."
In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system. But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted. (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)
My point here is not to assert that John's data analysis is misguided or inaccurate in any way. But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights. And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.
Prior posts about Prof. John Pfaff's important research:
- A systematic examination of prison growth (from 2007)
- Assessing the reality of modern prison growth (from 2009)
- A data-based exploration of prison growth and the drug war (from 2013)
- The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report (from 2014)
- "The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options" (from 2014)
February 8, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack
Thursday, February 05, 2015
"Could 2015 be the year Congress finally gets serious about criminal-justice reform?"
The title of this post is the subheading of this new Mother Jones piece which carries this main headline: "On These 5 Things, Republicans Actually Might Work With Dems to Do Something Worthwhile." Here are highlights (mostly) from the start and end of the piece:
Recently, bipartisan momentum has been building behind an issue that has historically languished in Congress: criminal-justice reform. Recent Capitol Hill briefings have drawn lawmakers and activists from across the political spectrum—from Sen. Al Franken (D-Minn.) to Koch Industries general counsel Mark Holden, whose boss, conservative megadonor Charles Koch, has made reform a key philanthropic priority.
The emergence of this unlikely coalition has been building for some time: Liberals have long been critical of the criminal-justice status quo, and many "tough on crime" conservatives — growing concerned by the staggering costs of mass incarceration and the system's impingement on liberty — are beginning to join their liberal and libertarian-minded colleagues. In the past, bills aimed at overhauling the criminal-justice system have stagnated on Capitol Hill, but the bipartisan players who are coming together to push for change means that there are some reforms that could realistically gain traction, even in this divided Congress....
Easing up mandatory minimums....
Sealing and expunging records....
Despite the bipartisan efforts, many experts still believe that there are plenty of issues that could pose serious obstacles to compromise. Beyond the disagreement on mandatory minimums, there's potential conflict on the role of for-profit prisons, which conservatives praise and Democrats like Booker loathe. Additionally, support for loosening drug penalties — particularly for marijuana — is growing broadly popular, but powerful Republicans remain vocal opponents....
There is one especially powerful force pushing along reform: The federal government is expected to spend nearly $7 billion on prisons this year, and conservatives in charge of Congress will be under pressure to bring down costs. "With every Congress, I'm hopeful for reform," Hurst says. "But this Congress' argument is based on money, not humanity, which is why it's more realistic that it'd happen."
February 5, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
This Wired article provides the basic story on a notable modern federal defendant who, thanks to a jury verdict yesterday, is now a high-profile convicted felon awaiting sentencing:
A jury has spoken, and the mask is off: Ross Ulbricht has been convicted of being the Dread Pirate Roberts, secret mastermind of the Silk Road online narcotics empire.
On Wednesday, less than a month after his trial began in a downtown Manhattan courtroom, 30-year-old Ulbricht was convicted of all seven crimes he was charged with, including narcotics and money laundering conspiracies and a “kingpin” charge usually reserved for mafia dons and drug cartel leaders. It took the jury only 3.5 hours to return a verdict. Ulbricht faces a minimum of 30 years in prison; the maximum is life. But Ulbricht’s legal team has said it will appeal the decision, and cited its frequent calls for a mistrial and protests against the judge’s decisions throughout the case.
As the verdict was read, Ulbricht stared straight ahead. His mother Lyn Ulbricht slowly shook her head, and his father Kirk put a hand to his temple. After the verdict, Ulbricht turned around to give his family a stoic smile. “This is not the end,” Ulbricht’s mother said loudly as he was led out of the courtroom. “Ross is a hero!” shouted a supporter.
From his first pre-trial hearings in New York, the government’s evidence that Ulbricht ran the Silk Road’s billion-dollar marketplace under the pseudonym the Dread Pirate Roberts was practically overwhelming. When the FBI arrested Ulbricht in the science fiction section of a San Francisco public library in October of 2013, his fingers were literally on the keyboard of his laptop, logged into the Silk Road’s “mastermind” account. On his seized laptop’s hard drive, investigators quickly found a journal, daily logbook, and thousands of pages of private chat logs that chronicled his years of planning, creating and day-to-day running of the Silk Road. That red-handed evidence was bolstered by a college friend of Ulbricht’s who testified at trial that the young Texan had confessed creating the Silk Road to him. On top of that, notes found crumpled in his bedroom’s trashcan connected to the Silk Road’s code. Ulbricht’s guilty verdict was even further locked down by a former FBI agent’s analysis that traced $13.4 million worth of the black market’s bitcoins from the Silk Road’s servers in Iceland and Pennsylvania to the bitcoin wallet on Ulbricht laptop.
Ulbricht’s defense team quickly admitted at trial that Ulbricht had created the Silk Road. But his attorneys argued that it had been merely an “economic experiment,” one that he quickly gave up to other individuals who grew the site into the massive drug empire the Silk Road represented at its peak in late 2013. Those purported operators of the site, including the “real” Dread Pirate Roberts, they argued, had framed Ulbricht as the “perfect fall guy.”...
But that dramatic alternative theory was never backed up with a credible explanation of the damning evidence found on Ulbricht’s personal computer. The defense was left to argue that Ulbricht’s laptop had been hacked, and voluminous incriminating files injected into the computer — perhaps via a Bittorrent connection he was using to download an episode of the Colbert Report at the time of his arrest. In their closing arguments, prosecutors called that story a “wild conspiracy theory” and a “desperate attempt to create a smokescreen.” It seems the jury agreed.
Despite the case’s grim outcome for Ulbricht, his defense team seemed throughout the trial to be laying the grounds for an appeal. His lead attorney Joshua Dratel called for a mistrial no less than five times, and was rejected by the judge each time. Dratel’s protests began with pre-trial motions to preclude a large portion of the prosecution’s evidence based on what he described as an illegal, warrantless hack of the Silk Road’s Icelandic server by FBI investigators seeking to locate the computer despite its use of the Tor anonymity software. As the trial began, Dratel butted heads with the prosecution and judge again on the issue of cross-examining a Department of Homeland Security witness on the agency’s alternative suspects in the case, including bitcoin mogul and Mt. Gox CEO Mark Karpeles. And in the last days of the trial, Dratel strongly objected again to a decision by the judge to disallow two of the defense’s expert witnesses based on a lack of qualifications....
Ulbricht will nonetheless be remembered not just for his conviction, but also for ushering in a new age of online black markets. Today’s leading dark web drug sites like Agora and Evolution offer more narcotics listings than the Silk Road ever did, and have outlived law enforcement’s crackdown on their competitors. Tracking down and prosecuting those new sites’ operators, like prosecuting Ulbricht, will likely require the same intense, multi-year investigations by three-letter agencies.
Though I am not familiar with all the likely sentencing particulars, I would expect a guidelines calculation in this case to be life and that prosecutors will urge a guideline-recommended LWOP sentence. The defense surely will seek the minimum sentence, which in this case is the not-so-minimum 30 years in the federal greybar hotel.
In addition to pursuing their appeal, Ulbricht's defense team might reach out to Brian Doherty at Reason, who has this provocative commentary headlined "Silk Road: Ross Ulbricht's Loss is a Loss for Justice, Liberty, Safety, and Peace: The operation Ulbricht was found guilty of managing was one guaranteed to save lives, reduce real crime, and preserve liberty." Here are excerpts:
[T]he government's multi-year, incredibly expensive attempt to take down the site and prosecute Ulbricht were bad for liberty, bad for markets, bad for the safety of those who choose to use substances the government has declared forbidden, and bad for America....
Ulbricht, if he's guilty of what they tried him for, is guilty of nothing but trying, and for a while succeeding, in doing a good thing for his fellow citizens, the world, and the future. His case will be remembered not as one of stalwart cops saving the world from dangerous crime, but of a visionary martyr punished for the good he did.
The combination of cryptography and Bitcoin are out of the bottle, and what it ultimately means is that the war on drugs is even more hopeless than it always was. But the government seems to never run out of candidates to be the last person to be a victim of that war, a victim of that mistake. May Ulbricht be among the last.