Friday, June 05, 2015

Imagining a domestic Marshall Plan to rebuild communities after ending the drug war

For many reasons, it is way too early to say the long national war on drugs is over or even that there has been a significant retrenchment of the war at the federal level.  Nevertheless, given the apprarent waning public support and clearly waning criminal justice resources being devoted to this war, it is not too early to start making plans for how best to frame national, state and local policies and priorities when this war ends.  To that end, I have been talking up in some of my classes and lectures the idea of a "Marshall Plan" afte the drug war, and I was pleased and excited when visiting Harvard Law School a few months ago to leasr that some others were thinking along these lines as well.

In particular, David Harris and Johanna Wald, who help run the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, have robustly embraced the notion of a modern domestic Marshall Plan as evidence by this new op-ed they authored for the Boston Globe. The piece is headlined "Proposing a Houston/Marshall Plan for domestic policy," and here are excerpts:

On June 5, 1947, Secretary of State George Marshall spoke to a crowd of 15,000 at Harvard University’s commencement. In a surprise announcement, he unveiled plans for the United States government to rebuild a Europe devastated by almost a decade of war. In simple straightforward language, he declared that this massive effort — which came to be known as the Marshall Plan — “is directed not against any country or doctrine but against hunger, poverty, desperation and chaos...” The Marshall Plan is largely credited with restoring confidence and hope along with local economies in Europe. It remains a testament to the power of American fortitude and ingenuity.

Sixty-eight years later, Marshall’s words carry a surprisingly potent punch — albeit in response to a very different kind of “war”; one that we have been waging for decades against our own communities of color. During the past year, the curtain has been pulled back, revealing the maze of punishment, fear, and surveillance that traps so many individuals, particularly young men, living in these communities. They attend underresourced schools that expect them to fail and drop out. Police function as a hostile, occupying force, frequently hunting them down, and subjecting them to humiliating arrests and stop-and-frisk practices. They even lack recreational outlets....

Make no mistake about it. These communities did not simply “evolve.” They exist in their current state because of very deliberate educational, transportation, housing, and economic policy choices. These include investing in highways over subways, creating policies that transfer good jobs to areas beyond the reach of public transportation, redlining practices that keep families of color from moving into higher opportunity neighborhoods, and allocating scarce education dollars on surveillance and police rather than on libraries and laboratories. Each choice closes off one more exit out of the maze, and keeps residents stumbling into dead ends.

“The remedy lies in breaking the vicious circle,” stated George Marshall in the speech. Indeed. We propose to create a new Houston/Marshall Plan (named after civil rights giants Charles Hamilton Houston and Thurgood Marshall), focused on helping communities restore themselves after decades of intentional disinvestment.  This new Houston/Marshall Plan will advance strategies, innovations, and solutions designed by those living and working in these neighborhoods.  It is their voices that have been routinely ignored or silenced in public policy discussions.  It will promote public health perspectives that favor recreational, day care and health centers, diversion programs that allow mothers to stay with their children, treatment for addictions, and job training instead of more police, more prosecutions, and more prisons.  It will highlight promising models for building affordable housing units near these jobs, and for creating school cultures that expect students to succeed instead of treating them like criminals-in-waiting.  For those who decry the costs of this rebuilding, we point to the economic and public safety benefits that all of us will reap from investments in communities and lives too long neglected.

June 5, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 02, 2015

Spotlighting the role and importance of federal prosecutors in the drug war

Mona Lynch has this notable new op-ed in today's New York Times headlined "Reining In Federal Prosecutors." here are excerpts:

In recent months, police departments and prison systems have been taking heat for the systemic abuses that mar our nation’s justice system. But one key player has been notably absent: For decades, our federal court system has been quietly perpetrating some of the deepest injustices in the name of the war on drugs.

Federal laws passed at the height of our punitive frenzy in the 1980s have been abused by overzealous federal prosecutors to compel guilty pleas and obtain long, unjust prison sentences, especially against black drug defendants. We must rein in these practices if we are to reshape our country’s criminal justice system for the 21st century.

Prosecutors have a number of tools at their disposal, the most powerful of which is the “851,” which can be filed against those with prior drug convictions to at least double mandatory minimum sentences. In the worst case, a 10-year mandatory minimum becomes a life sentence without parole for a defendant with two prior convictions. The 851 statute was passed in 1970 to give prosecutors more discretion to seek harsh sentences against only the most serious offenders, and exempt lower-level defendants. But it has been deployed in exactly the opposite manner.

I have conducted in-depth qualitative research and interviews in four federal districts; in each, the 851 threat loomed for nearly everyone with the eligible prior record. In the words of one of my interviewees, “the 851 is the ultimate lever” used by prosecutors to force a guilty plea. And it almost always worked: Defendants were compelled to waive their rights and plead guilty to ensure that their sentences were not doubled, or worse.... [N]o entity tracks the threat or use of the 851 in drug cases. We do know, however, from qualitative research like mine and recent work by the United States Sentencing Commission that its coercive use has been pervasive.

Data also indicate that mandatory minimums and enhancements like the 851 have been disproportionately used against black defendants. While research shows that illicit drug use and distribution is generally proportionate to the racial makeup of the nation’s population, black people are overrepresented as drug defendants in federal courts, constituting 30 percent of all those sentenced for drug crimes, and a full two-thirds of those who receive life sentences.

Between 1992 and 2012, about 2,300 black men have been sentenced to life for federal drug convictions, 72 percent of whom had asserted their right to trial. While data cannot pinpoint the 851 as the trigger of those life sentences, it does indicate that 96 percent were subject to drug mandatory minimums at sentencing.

Some effort has been made to address the overzealous use of the 851 threat. In 2014, Attorney General Eric H. Holder Jr. directed prosecutors to refrain from using the 851 as a threat or inducement in plea negotiations. But while his directive has clearly changed behavior in some districts, the 851 threat remains alive in others.

As we grapple with the consequences of a three-decade-long law-and-order binge that has disproportionately affected black communities, we must repair the damage done in the past and prevent a repeat in the future. That means revisiting the unconscionably long sentences that keep Brandon and others behind bars for most or all of their lives, and it means removing hammers like the 851 from the prosecutors’ toolbox to prevent their future abuse.

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

Sunday, May 31, 2015

Sentencing message sent: blazing a Silk Road for drugs gets you LWOP

Images (10)A high-profile prosecution of a high-tech drug dealer culminated on Friday with the sentencing of Silk Road creator Ross Ulbricht.  This Wired story provides an effective account of the sentencing, and includes these excerpts:

On Friday Ulbricht was sentenced to life in prison without the possibility of parole for his role in creating and running Silk Road’s billion-dollar, anonymous black market for drugs. Judge Katherine Forrest gave Ulbricht the most severe sentence possible, beyond what even the prosecution had explicitly requested. The minimum Ulbricht could have served was 20 years.

“The stated purpose [of the Silk Road] was to be beyond the law. In the world you created over time, democracy didn’t exist. You were captain of the ship, the Dread Pirate Roberts,” she told Ulbricht as she read the sentence, referring to his pseudonym as the Silk Road’s leader. “Silk Road’s birth and presence asserted that its…creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.”

In addition to his prison sentence, Ulbricht was also ordered to pay a massive restitution of more than $183 million, what the prosecution had estimated to be the total sales of illegal drugs and counterfeit IDs through the Silk Road—at a certain bitcoin exchange rate—over the course of its time online. Any revenue from the government sale of the bitcoins seized from the Silk Road server and Ulbricht’s laptop will be applied to that debt.

Ulbricht had stood before the court just minutes earlier in navy blue prison clothes, pleading for a lenient sentence. “I’ve changed. I’m not the man I was when I created Silk Road,” he said, as his voice grew hoarse with emotion and cracked. “I’m a little wiser, a little more mature, and much more humble.”

“I wanted to empower people to make choices in their lives…to have privacy and anonymity,” Ulbricht told the judge. “I’m not a sociopathic person trying to express some inner badness.”

Ulbricht’s sentencing likely puts the final seal on the saga of Silk Road, the anarchic underground market the 31-year-old Texan created in early 2011. At its peak, the Dark Web site grew to a sprawling smorgasbord of every narcotic imaginable — before Ulbricht was arrested in a public library in San Francisco in October of 2013. Eighteen months later, he was convicted in a Manhattan court on seven felony charges, including conspiracies to traffic in narcotics and launder money, as well as a “kingpin” charge usually reserved for the leaders of organized crime groups....

Ulbricht’s defense team has already said it will seek an appeal in his case. That call for a new trial will be based in part on recent revelations that two Secret Service and Drug Enforcement Administration agents involved in the investigation of the Silk Road allegedly stole millions of dollars of bitcoin from the site. One of the agents is even accused of blackmailing Ulbricht, and of allegedly selling him law enforcement information as a mole inside the DEA. But the judge in Ulbricht’s case ruled that those Baltimore-based agents weren’t involved in the New York FBI-led investigation that eventually took down the Silk Road, preventing their alleged corruption from affecting Ulbricht’s fate.

Speaking to press after the sentencing, Ulbricht’s lead attorney Joshua Dratel said that Forrest’s sentence was “unreasonable, unjust, unfair and based on improper consideration with no basis in fact or law.” He added: “I’m disappointed tremendously.”

In emotional statements at the hearing, the parents of drug users who had overdosed and died from drugs purchased from the Silk Road called for a long sentence for Ulbricht. “I strongly believe my son would still be alive today if Mr. Ulbricht had never created Silk Road,” said one father whose 25-year old son had died from an overdose of heroin, requesting “the most severe sentence the law will allow.”

In the weeks leading up to his sentencing hearing, Ulbricht’s defense team attempted to lighten his punishment with arguments about his motives and character, as well as emphasizing the Silk Road’s positive effect on its drug-using customers. In more than a hundred letters, friends, family, and even fellow inmates pointed to Ulbricht’s idealism and lack of a criminal history. And the defense argued that Silk Road had actually reduced harm in the drug trade by ensuring the purity of the drugs sold on the site through reviews and ratings, hosting discussions on “safe” drug use, and giving both buyers and sellers an avenue to trade in narcotics while avoiding the violence of the streets.

But the prosecution countered that any protection the Silk Road offered drug users was dwarfed by the increased access it offered to dangerous and addictive drugs. And beyond the two parents who spoke at the Friday hearing, it pointed to six individuals who it claimed had died of drug overdoses from drugs purchased on the Silk Road.

In her statement preceding Ulbricht’s sentencing, Judge Forrest fully sided with the prosecution against the defense’s “harm reduction” argument, arguing that the Silk Road vastly expanded access to drugs. “Silk Road was about fulfilling demand, and it was about creating demand,” she said. “It was market-expanding.”

She also tore into the argument that the Silk Road reduced violence in the drug trade, pointing out that most of the academic papers submitted by the defense to support that argument focused only on the protection for the final buyer of drugs. But that digital remove, she argued, did nothing to prevent violence at any other point in the narcotics supply chain, from production to distribution. “The idea that it’s harm reducing is so very narrow,” she said. “It’s…about a privileged group, sitting in their own homes, with their high speed internet connections.”

The Justice Department also argued in their letter to Judge Forrest that Ulbricht should be made an example of to stop even more Dark Web market kingpins from following in his footsteps. After all, dozens of copycat sites and advancements on the Silk Road market model have sprouted in the years since its takedown, including the Silk Road 2, Evolution, and the currently largest Dark Web black market to survive law enforcement’s attacks, Agora. To combat the spread of those anonymous bazaars, prosecutors asked Judge Forrest to “send a clear message” with a sentence for Ulbricht well beyond the mandatory minimum.

Judge Forrest sided with the prosecution on that point, too, arguing that she needed to create a strong deterrent for the next Dread Pirate Roberts. “For those considering stepping into your shoes…they need to understand without equivocation that there will be severe consequences,” Forrest said.

The defense’s arguments about Ulbricht’s character and his idealistic motives were also undercut by accusations that Ulbricht had paid for the murder of six people, including a potential informant and a blackmailer. Those accusations never became formal charges in Ulbricht’s case — five out of six of the murder-for-hires appear to have been part of a lucrative scam targeting Ulbricht, with no actual victims.

But those murder accusations nonetheless deeply colored Ulbricht’s trial, and strongly influenced his sentence. “I find there is ample and unambiguous evidence that [Ulbricht] commissioned five murders to protect his commercial enterprise,” Forrest said, leaving out one alleged attempted murder for which Ulbricht was charged in a different case.

With those attempted murders as context, Forrest was merciless in her assessment of Ulbricht’s seeming multiple personalities: the altruistic and admirable young man described in the letters sent to her as evidence of his character, versus the callous drug lord she saw in his actions. “People are very complicated, and you are one of them,” she said simply. “There is good in you, Mr. Ulbricht. There is also bad. And what you did with the Silk Road was terribly destructive.”

May 31, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)

Wednesday, May 27, 2015

Feds seeking LWOP sentence for Silk Road creator Ross Ulbricht

As reported in this Wired piece, "headlined "Silk Road Prosecutors Ask to 'Send a Message' in Ulbright Sentencing," the federal government has now asked for the toughest possible sentence for the defendant convicted of creating the on-line drug market known as Silk Road. Here is part of the story:

Ross Ulbricht's billion-dollar black market Silk Road was in many ways the first of its kind, blending encryption and online drug sales in a business model that plenty of other online drug lords have since sought to emulate. So as Ulbricht’s sentencing for running that massive narcotics-selling experiment approaches, the Department of Justice wants to make an example of Ulbricht’s punishment, too.

Ahead of Ulbricht’s sentencing Friday, prosecutors in his case have sent the judge a 16-page letter asking that Ulbricht be given the maximum possible punishment of life in prison. And one of the reasons for that harsh sentence, the Department of Justice attorneys argue, is to “send a clear message” to anyone who would follow in Ulbricht’s footsteps and create the next Dark Web drug market.

“Ulbricht’s conviction is the first of its kind, and his sentencing is being closely watched,” the prosecution’s letter reads. “The Court thus has an opportunity to send a clear message to anyone tempted to follow his example that the operation of these illegal enterprises comes with severe consequences.”

That deterrence argument is just one in a series of calls for a life sentence made by the prosecution in its letter. At other points, it lists the details of six deaths it argues were caused by drug overdoses facilitated by the Silk Road’s anything-goes drug sales. It rebuts the positive arguments about Ulbricht’s character made by the defense, as well as the over 100 letters from friends, family, and even fellow inmates about Ulbricht’s character, pointing to his cold-blooded recording of his attempted murders of enemies in the journal found on his laptop. And it counters the argument made in the defense’s pre-sentencing letter to the judge: That the Silk Road actually reduced harm for drug users with a rating and review system that assured drugs’ quality and purity....

Indeed, several iterations of the Silk Road have come and gone in the two short years since it went offline. Those copycat sites have included the Silk Road 2, which was shut down in law enforcement’s dark web purge last fall, and Evolution, a giant black market for drugs, guns, and stolen financial information whose leaders absconded with users’ funds in March. Today the black market site Agora reigns as the largest black market still online, with tens of thousands more products listed for sale than the Silk Road ever offered.

In its letter, the Silk Road prosecution points to the difficulty of tracking down and punishing the creators of those markets as one more reason that Ulbricht should be imprisoned for life: If anonymous market administrators can’t be easily caught, perhaps they can be deterred from a life of Dark Web crime by their fear of Ulbricht’s fate. “Although the Government has achieved some successes in combating these successor dark markets, they continue to pose investigative challenges for law enforcement,” reads the letter. “To the extent that would-be imitators may view the risk of being caught to be low, many are still likely to be deterred if the stakes are sufficiently high.”

The government's full sentencing memorandum is available at this link.

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May 27, 2015 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, May 24, 2015

"Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"

This new ars technica posting provides the title of this post and it provides background and links to a high-energy effort by a high-profile defendant to get a lower sentence for his high-tech drug dealing crimes for which he will be sentenced in the coming week.  Here are excerpts:

Convicted Silk Road founder Ross Ulbricht and no less than 97 of his friends and family members have written to a judge just days prior to sentencing, asking her to impose the most lenient sentence possible. (Ars has posted the letters online along with the court filing of photos of Ulbricht and many family and friends.)

 Under federal mandatory minimum sentencing guidelines, Ulbricht faces at least 20 years in prison and possibly as long as life behind bars.  “Silk Road turned out to be a very naive and costly idea that I deeply regret,” he wrote in his own 1.5 page letter to United States District Judge Katherine Forrest filed on Friday.

Ulbricht’s own letter marks the first time he has shown any public remorse during the entire saga, during which he did not testify. His attorney, Joshua Dratel, spun unsubstantiated theories that while Ulbricht created Silk Road, unnamed mysterious others took over the site and should be the ones prosecuted for the crime. Dratel previously vowed to appeal the verdict.

In February 2015, Ulbricht was convicted of seven charges including three drug counts: distributing or aiding and abetting the distribution of narcotics, distributing narcotics or aiding and abetting distribution over the Internet, and conspiracy to violate narcotics laws. He was also convicted on a fourth count of conspiracy to run a "continuing criminal enterprise," which involves supervising at least five other people in an organization. In addition, Ulbricht was convicted on conspiracy charges for computer hacking, distributing false identification, and money laundering.

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May 24, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Friday, May 22, 2015

Two notable voices from the (far?) right calling again for drug war and sentencing reform

Download (2)The two recent stories about recent comments by notable advocates reinforce my sense that more and more traditional (and not-so-traditional) conservative voices are feeling more and more confortable vocally criticizing the federal drug war and severe drug sentencing:

Headline: "Grover Norquist: Malloy Right On Drug Sentencing Reform"

Money Quotes:   If you told me a year ago that I [Grover Norquist] would be speaking out in favor of one of Gov. Dannel P. Malloy's top priorities, I would have said you were crazy. The governor is a tax-and-spend liberal and I have spent my entire career fighting high taxes and wasteful government spending. Yet, just as a broken clock gets it right once in a while, Gov. Malloy is right about the need to reform mandatory minimum sentencing laws.

Contrary to their original intent, mandatory minimum laws have done little to reduce crime. They have, however, been significant drivers of prison overcrowding and skyrocketing corrections budgets. That's why conservatives and liberals in Washington, D.C., and in statehouses all across the country are coming together to repeal and reform these one-size-fits-all laws. Oklahoma, Georgia, South Carolina, Texas and Florida are just a handful of the states where conservatives have not simply supported, but led, the efforts to scale back mandatory minimum sentences.

Conservatives in Connecticut should support the governor's mandatory minimum proposals for two reasons. First, the reforms are very modest — addressing only drug possession. In some states, such as Connecticut's neighbor, Rhode Island, and Delaware, lawmakers have repealed mandatory minimum sentences for all drug offenses. Still more states have enacted significant reform to their drug mandatory minimum laws so that judges have discretion to impose individualized sentences that fit the crime. In all of these states, crime rates have dropped.

Conservatives in Connecticut also should embrace sentencing reform because of the state's awful budget mess. For too long, fiscal hawks have turned a blind eye to wasteful law enforcement spending. Not wanting to appear "soft on crime," they have supported every program and policy to increase the prison population without subjecting those ideas to cost-benefit analysis.

Those days are over. After watching state spending on prisons skyrocket more than 300 percent over the last two decades, state leaders across the country seem to understand that they can no longer afford to warehouse nonviolent offenders in prison.


Headline: "Glenn Beck Calls for the Repeal of Federal Drug Prohibition"

Money QuotesToday on Glenn Beck's radio (and TV) show, I [Jacob Sullum] debated marijuana prohibition with Robert White, co-author (with Bill Bennett) of Going to Pot: Why the Rush to Legalize Marijuana Is Harming America The conversation turned to the war on drugs in general and also touched on federalism, the Commerce Clause, the nature of addiction, and the moral justification for paternalistic interference with individual freedom.  Reading from my recent Forbes column, Beck said he is strongly attracted to the Millian principle that "the individual is sovereign" over "his own body and mind," which rules out government intervention aimed at protecting people from their own bad decisions. "I'm a libertarian in transit," he said. "I'm moving deeper into the libertarian realm.... Inconsistencies bother me." By the end of the show, Beck was declaring that the federal government should call off its war on drugs and let states decide how to deal with marijuana and other psychoactive substances.

Addendum: Marijuana Majority's Tom Angell notes that Beck indicated he favored marijuana legalization back in 2009, saying, "I think it's about time we legalize marijuana...  We either put people who are smoking marijuana behind bars or we legalize it, but this little game we are playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border...  Fifty percent of the money going to these cartels is coming just from marijuana coming across our border." As far as I know, however, this is the first time Beck has explicitly called for an end to federal prohibition of all the other currently banned drugs.

May 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 21, 2015

"How America Overdosed on Drug Courts"

The title of this post is the headline of this lengthy and critical analysis of the modern drug courts movement appearing in the Pacific Standard magazine.  The subheadling highlights its main themes: "Hailed as the most compassionate way for the criminal justice system to deal with addicts, drug courts were designed to balance punishment with rehabilitation. But after 25 years, the verdict is in: Drug courts embolden judges to practice medicine without a license—and they put lives in danger." I consider this piece a must-read for all those interested in drug sentencing reform, and here are excerpts:

The first drug court opened in Florida’s Miami-Dade County in 1989, near the height of the hysteria in this country over drugs, particularly crack cocaine.  Both conservatives and liberals found something to love: Conservatives liked the potential for reduced prison spending, and liberals liked the emphasis on therapy.  From the start, however, critics voiced concerns about “cherry picking,” because the courts only allowed into the program defendants who seemed likely to succeed whether or not they received help. This sort of selectivity was built into the system: The federal laws that determine eligibility for grants to create new drug courts (ongoing funding is primarily state and local) require that the courts exclude people with a history of violent crime.  Many drug courts also bar people with long non-violent criminal histories.  Predictably, this eliminates many of those who have the most serious addictions — the very people the courts, at least in spirit, are supposed to help.

Proponents of drug courts celebrate the fact that those who participate do better than similar defendants who are simply incarcerated or given standard probation. This is unquestionably true.  “The average effect is to reduce new crimes by 10 to 15 percent,” says Douglas Marlowe, the chief of science, policy, and law for the National Association of Drug Court Professionals.  (Those crimes include not only drug sales and possession but also crimes committed to pay for drugs, such as burglary and robbery.)  “The vast majority of evaluations show that they work,” says Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida, “and the effect size is larger than any other large-scale criminal justice intervention.”

These improvements are seen mainly in people who graduate, however, which is only roughly half of those who participate — a fact that the NADCP and other advocates tend to play down.  Worse, defendants who start but do not complete drug court often serve longer sentences, meted out by judges as punishment, than they would have had they simply taken a plea and not tried to solve their drug problem.  That strikes many critics as a manifest injustice.  “This is intensifying the drug war on half of the people,” says Kerwin Kaye, an assistant professor of sociology at Wesleyan University.  “It’s not stopping the drug war, it’s continuing it by other means.”  Not only that, many people who fail to graduate drug court often go on to become worse offenders, compared to both graduates and to similar defendants who do not participate in drug courts.  According to a 2013 study of New York’s drug courts conducted by the Urban Institute and the Center for Court Innovation, which included data on more than 15,000 defendants, 64 percent of non-graduates were rearrested within three years, whereas only 36 percent of graduates were. Among comparable defendants who did not participate in drug courts, just 44 percent were re-arrested in that period, suggesting that those who tried but flunked drug court did worse than those who served their time.

May 21, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, May 19, 2015

Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht

As reported in this Wired piece, headlined "Ahead of Sentencing, Ulbricht Defense Argues Silk Road Made Drug Use Safer," the defense in a notable drug sentencing case is making a notable new claim about the nature and consequences of the defendant's drug dealing methods.  Here are the details:

When a jury convicted Ross Ulbricht three months ago of running the Silk Road, it closed the legal question of whether he was guilty of masterminding that billion-dollar online black market for drugs. But as Ulbricht’s sentencing approaches, his defense is opening another ethical question that may be far more societally important: Did the Silk Road’s newly invented method of narcotics e-commerce actually reduce the risks of drug use?

In a memo to judge Katherine Forrest filed Friday afternoon, Ulbricht’s defense has asked her to consider the Silk Road’s potential for “harm reduction” when she determines Ulbricht’s sentence in less than two weeks.  The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs, that Ulbricht had expressly tried to encourage “safer” drug use on his black market site, and that the digital nature of the site’s commerce may have protected users from physical interactions that in the traditional drug trade often lead to violence.

“In contrast to the government’s portrayal of the Silk Road web site as a more dangerous version of a traditional drug marketplace, in fact the Silk Road web site was in many respects the most responsible such marketplace in history, and consciously and deliberately included recognized harm reduction measures, including access to physician counseling,” writes Ulbricht’s lead defense attorney Joshua Dratel in the filing.  “In addition, transactions on the Silk Road web site were significantly safer than traditional illegal drug purchases, and included quality control and accountability features that made purchasers substantially safer than they were when purchasing drugs in a conventional manner.”

The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs.  One of the Silk Road’s innovations, after all, was to bring an eBay-like system of ratings and reviews for online drug sales.  That system gave buyers a way to quickly weed out dealers selling lower quality or less pure substances. The site maintained a section of its user forum devoted to safer drug use, where users could ask each other for advice and help with health problems.  And Ulbricht’s defense points to archived messages showing that Ulbricht even offered at one point to pay $500 a week to a Spanish doctor, Fernando Caudevilla, who frequented the forum and answered users’ questions.  Ulbricht also asked Caudevilla if he’d be willing to chemically test drugs on the site for quality, though it’s not clear if that testing scheme was ever put into practice.

Regardless, Ulbricht isn’t likely to receive a light sentence.  The 31-year-old Texan was convicted of seven felony charges in February that include conspiracies to traffic in narcotics and money laundering, as well as a “kingpin” statute reserved for the leaders of organized criminal operations, which could add another decade to his prison time.  In all, he faces a minimum of 30 years in prison and a maximum of life.  Ulbricht’s defense team has already said it plans to appeal the case.

The prosecution in Ulbricht’s case has revealed that it plans to present at Ulbricht’s sentencing hearing six cases of individuals who died from overdoses of drugs bought on the Silk Road.  But in its Friday filing, the defense addressed and rebutted each of those examples. In a grisly section of a separate memo, it goes through the details of those six deaths, in each case arguing that the deceased suffered from earlier health conditions and questioning whether the death-inducing drugs had actually been bought from vendors on the Silk Road. “It is simply impossible for the government to prove that drugs obtained from Silk Road ‘caused’ death, and in certain cases, the government cannot even establish to any degree of certainty that any of the drugs ingested came from Silk Road,” Dratel writes....

To bolster its argument about the societal benefits of the Silk Road, the defense includes in its filing sworn statements from a series of experts, including Tim Bingham, the administrator of an addiction-focused non-profit known as the Irish Needle Exchange Forum, and Meghan Ralston, the former director of harm reduction for the Drug Policy Alliance.  Bingham, for instance, published three studies in the International Journal of Drug Policy about the Silk Road based on surveys of users.  He writes in his statement that he “concluded that Silk Road forums…appeared to act as an information mechanism for the promotion of safer and more acceptable or responsible forms of recreational drug use.”

The full text of this Ulbricht Sentencing Defense Letter can be accessed at this link.

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May 19, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Monday, May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

Images (9)As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings.  I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

Cross-posted at Marijuana Law, Policy and Reform

May 11, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 08, 2015

"We clearly need criminal-justice reform" says GOP Prez candidate Carly Fiorina

This Des Moines Register article (and video) details some notable new comments on criminal justice reform and drug policy from a notable new GOP Prez candidate.  Here are excerpts: 

The nation should stop overreacting to illegal drug use and stop doling out jail sentences that are way too long, Republican presidential candidate Carly Fiorina said in Iowa on Thursday.

"We know that we don't spend enough money on the treatment of drug use," said Fiorina, former chief executive of Hewlett-Packard. "When you criminalize drug abuse, you're actually not treating it. We had a daughter who died of addictions, so this lands very close to home for me." Fiorina's daughter Lori, a drug and alcohol addict, died in 2009.

The "three strikes and you're out" law doesn't work well, and all the drug laws affect African-Americans more than others, Fiorina told The Des Moines Register's editorial board during an hourlong meeting.

"I don't think that overreacting to illegal drug use is the answer," said Fiorina, who officially entered the 2016 race on Monday and is the only woman in the GOP field. She has never held elected office, but ran unsuccessfully for U.S. senator in California.

Asked whether she favors decriminalizing marijuana, Fiorina answered: "No, I do not think we should legalize marijuana."...

Asked whether, as president, she'd direct the U.S. attorney general to enforce federal drug laws in states such as Colorado, Alaska, Washington and Oregon, Fiorina said she wouldn't. "I believe in states' rights," she said. "They're within their rights to legalize marijuana, and they're conducting an experiment I hope the rest of the nation is looking closely at."

May 8, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Senator Grassley's home-state paper tells him to stop blocking federal sentencing reforms

This new editorial from the Des Moines Register, headlined "Grassley should not block sentencing reforms," highlights that some notable folks are frustrated by Senator Charles Grassley's apparent unwillingness to move forward significantly with federal sentencing reforms proposed by his colleagues. Here are excerpts:

Amid hysteria over growing use of illegal drugs 30 years ago, Congress passed tough new criminal laws carrying long mandatory prison sentences. Regardless of whether mandatory sentences had any effect on drug abuse, they have contributed to a 500 percent increase in the federal prison population and a 600 percent increase in federal prison spending.

Besides filling prisons and imprisoning a generation of largely minority males from inner cities, these one-size-fits-all sentences tie the hands of judges who should tailor penalties to the unique circumstances of individual defendants.  And this obsession with criminalizing drug use has diverted resources that instead should be used to help people overcome their addictions.

Something extraordinary has happened recently, however: A consensus has emerged that this nation has put far too many people behind bars, and in the process it has created an unemployable underclass with criminal records.  That consensus includes a remarkable cross-section of politicians from both ends of the political spectrum, along with religious leaders, corporate executives and opinion leaders.

While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.

Grassley’s rhetoric has not encouraged optimism.  He was dismissive and defensive when a “Smarter Sentencing Act” was introduced in March with the support of senators ranging from Republicans Ted Cruz of Texas and Rand Paul of Kentucky to Democrats Dick Durban of Illinois and Patrick Leahy of Vermont.  He referred to supporters of the sentencing reform bill in a floor speech as the “leniency industrial complex.”

Although he recently seemed to soften his tone, saying he is “ready to address some of these issues,” Grassley has ruled out any across-the-board cut in mandatory minimum sentences.  Three Iowa bishops in a guest opinion published by the Register May 1 called on him to support sentencing reform, but he promptly responded with an opinion piece that amounted to a full-throated defense of mandatory minimum sentences.

The argument in favor of mandatory sentences is that the prospect of spending decades in prison gives prosecutors leverage to get lower-tiered dealers to produce evidence against “drug kingpins.”  But this gives prosecutors enormous power to force defendants to plead guilty, and with no prior involvement of a judge in open court.

Despite the assertion that mandatory sentences are aimed at putting away drug lords, “offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers — many levels down from kingpins and organizers,” according to research by the U.S. Sentencing Commission....

This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure.  At long last there is growing support for changing that.  Iowa’s senior senator should not stand in the way.

Some recent related posts:

May 8, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 06, 2015

How many federal prison years are being served by defendants who (plausibly?) claimed compliance with state medical marijuana regimes?

The question in the title of this post is prompted by this new article from Michigan headlined "West Michigan man sent to prison for purported medical marijuana grow operation."  Here are the basics of this story with some follow-up data/questions:

One of the two leaders of a medical marijuana grow operation has been sentenced to 14 years in federal prison.  Phillip Joseph Walsh, 54, was sentenced Monday by U.S. District Judge Paul Maloney in Kalamazoo.  Betty Jenkins, described as his "life partner" in court records, will be sentenced June 29.

The Kent County residents were convicted at trial of running a marijuana grow operation that prosecutors say brought in $1.3 million.  The two, along with eight others, including a doctor who authorized patients for use of medical marijuana, were arrested last year for growing marijuana in multiple places in West Michigan.

The government contended that much of the marijuana grown was sold outside of Michigan. Jenkins was considered the leader of the organization.  The defendants argued they acted within the guidelines of Michigan's medical marijuana law but were not allowed to use the law as a defense to the federal charges.

Kent County Area Narcotics Team and U.S. Drug Enforcement Administration used multiple search warrants to raid numerous properties, including apartment buildings in Gaines Township. Police seized 467 marijuana plants and 18 pounds of processed marijuana.

Defense attorney Joshua Covert said his client, a father of four daughters, was "very nervous" after reviewing advisory sentencing guidelines that called for 151 to 188 months in prison.  He said that Walsh has been a good, caring father and a hard worker and has led a productive life.  "Mr. Walsh and his life partner, Ms. Jenkins, lived a comfortable but certainly not lavish or extravagant life that was financed by rental income from property Ms. Jenkins obtained through her divorce," the attorney wrote in a sentencing memorandum.

"The endeavor of manufacturing marijuana was not particularly successful for Mr. Walsh from a financial standpoint because it proved to be difficult and expensive to manufacture marijuana," he wrote....  He said his client "is not seeking sympathy or pity" but asked for leniency "given the relaxed attitude toward marijuana nationwide and specifically Michigan in regards to marijuana."

Assistant U.S. Attorney Mark Courtade said Walsh and Jenkins began manufacturing marijuana on Forest Hill Avenue SE in 2010.  Walsh hired a man to help with the grow operation before both were convicted for their roles.  The other man quit, "but Walsh and Jenkins carried on, unfazed," Courtade said.

"Defendant Walsh developed the 'marketing scheme' that ensnared many of the codefendants in this case," the prosecutor wrote....  He said that Walsh tried to insulate himself by staying he was only "'building grow rooms' ... his real motivation was far more nefarious."

He said Walsh grew marijuana for profit, with some sold in Ohio, some in Rhode Island. Courtade also said that Walsh could not document wages he earned — he reported remodeling and roofing homes — but he managed to hired his own attorneys, pay for a co-defendant's expert witnesses and build numerous manufacturing operations. He recommended a sentence within guidelines.

This story of a lengthy federal prison sentence for major marijuana dealing in a medical marijuana state itself highlights the challenges of coming up with a satisfactory answer to the question in the title of this post.  The defendants here were apparently quick to claim that they were acting in accord with Michigan state medical marijuana laws, but the facts reported suggest little basis for this defense claim of state-law compliance.

That said, I know there are at least a handful (and perhaps more than a handful) of the roughly 5000 federal prosecutions for marijuana trafficking sentenced in federal courts each year involving defendants who truly have a plausible claim to being in compliance with state medical marijuana laws.  A low "guestimate" that an average of 10 federal marijuana defendants in each of the last 10 years have been been sentenced to an average of 10 years in federal prison for medical marijuana activities would, in turn, suggest that 1000 years in federal prison are being served by defendants who plausibly claimed compliance with state medical marijuana regimes.  

That is a lot of federal prison time (which would be costing federal taxpayers roughly $30 million because each prison year costs roughly $30,000).  And I have an inkling the number could be higher.

May 6, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, May 05, 2015

Could new DEA chief significantly change realities of federal war on drugs?

The question in the title of this post is prompted by this Huffington Post article, headlined "Lawmakers Encourage Obama To Select A Progressive New DEA Chief," reporting on this recent letter sent by a group of Representatives to Prez Obama. Here are the details: 

In a letter sent Friday, a group of lawmakers are urging President Barack Obama to select a more progressive head of the Drug Enforcement Administration, following the Department of Justice's announcement that the embattled current chief will resign in May. "We encourage you to use this as an opportunity to reshape the DEA's direction to reflect your administration's enforcement priorities," the letter reads.  The letter was signed by Reps. Jared Polis (D-Colo.), Steve Cohen (D-Tenn.), Earl Blumenauer (D-Ore.) and Democratic California Reps. Barbara Lee, Sam Farr, Zoe Lofgren and Eric Swalwell.

While the lawmakers say they appreciate the Obama administration's efforts to allow states to forge their own marijuana policies, they said that current DEA Administrator Michele Leonhart "leaves behind a legacy of strident opposition to efforts to reform our nation's drug policy."  The letter urges the president to nominate a new DEA chief who will be willing to work with state and federal officials to craft more flexible marijuana policies....

With just a little more than two weeks before Leonhart steps down, it remains unclear who the Obama administration could nominate who would both be approved by a Republican-controlled Senate and be a good fit for the DEA.

Leonhart came to head the DEA as acting administrator in 2007, under President George W. Bush.  She was made administrator in 2010 during Obama's first term, but has long seemed out of step on drug policy, clashing with the administration over the legalization of recreational marijuana in Colorado and Washington and with efforts to lower the mandatory minimum sentences for those convicted of federal drug crimes.

In their letter, the lawmakers argue that under Leonhart the DEA placed "far too great an emphasis on prosecuting state-legal marijuana activity, as opposed to prioritizing more dangerous drug-related activity," adding that her "misplaced priorities" exacerbated problems with the criminal justice system and put a strain on "legitimate marijuana businesses operating under state law."

May 5, 2015 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 01, 2015

Iowa faith leaders urge Senator Grassley to move forward with drug sentencing reforms

2015-SKO-Website-Flyer-3_12_151Last week, US Senator Charles Grassley spoke at the Iowa Faith & Freedom Coalition Forum, and the Faith & Freedom Coalition asserts here that its beliefs are rooted in the view "that the greatness of America lies not in the federal government but in the character of our people — the simple virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us." If Senator Grassley really shares this view, I would expect him to be significantly moved by this new Des Moines Register op-ed authored by clergy members headlined "Bishops call on Grassley to reform sentencing." Here are excerpts:

As bishops and as Christians, we are called to love and serve all people, share compassion and aid God's most vulnerable children. That is why we were among 130 of Iowa's faith leaders who last week signed a letter [available here] delivered to Iowa Sen. Chuck Grassley, the leader of the U.S. Senate Judiciary Committee. The letter advocates for sentencing reforms that affect men and women in federal prison for non-violent drug offenses.

We abhor the damage and death caused by addictive drugs. Too many Iowa families are in pain because of drug addiction, particularly from heroin. We seek to aid these families and the addicted, by supporting broader access to drug treatment, counseling and medical care. Incarceration is not an appropriate treatment for curing drug addiction.

We believe in accountability for the men and women responsible for selling illegal drugs. Those who are addicted themselves and sell drugs to support their habit should also have access to rehabilitative services. Punishment for distributing drugs is necessary; however, where we seek to influence our elected leaders is in how much punishment is justified.

Under federal law, people convicted of drug offenses are subject to strict mandatory minimum sentences based largely on the quantity of drugs possessed by the defendant. Judges have limited discretion to sentence below a mandatory sentence, even when evidence supports doing so.

For example, Mason City native Mandy Martinson received a mandatory 10-year drug sentence in 2004 for her affiliation with a boyfriend who sold marijuana and methamphetamine. She received an additional five years because two firearms were found in their home. At her sentencing hearing, the judge stated that "the evidence demonstrated that [Martinson] was involved due to her drug dependency and her relationship with [her boyfriend] and that she was largely subject to his direction and control. ... Upon obtaining reasonable drug treatment and counseling and in the wake of what she is facing now, the Court does not have any particular concern that Ms. Martinson will commit crimes in the future." Despite the judge's assessment, he had no choice but to sentence her to 15 years in federal prison.

Martinson remains in prison today, but we believe she has been in prison long enough. She is joined by nearly 100,000 people — most of whom are non-violent — serving excessive sentences in federal prisons for drug offenses. We recognize no simple solutions exist when it comes to protecting liberty and public safety, and crime demands accountability. However, a "lock em' up and throw away the key" philosophy actually undermines both of these values. Mandatory minimum sentences do not allow for consideration of an individual's experiences that led them to crime, nor to consider their age, mental capacity, or ability to learn their lesson and redeem themselves....

As many of chaplains and prison ministry volunteers know, prison overcrowding makes it difficult to operate effective faith-based and other rehabilitation programs that are proven to reduce recidivism and make our communities safer. Finally, there is an intangible expense paid by family members, particularly children, who must cope with the pain and burden of having a loved one incarcerated for far too long. Among the saddest of statistics is that some 10 million young people have had a mother or father — or both — spend time behind bars at some point in their lives.

As Iowans, we are privileged to have Senator Grassley hold unique influence in the trajectory of America's sentencing policy. We hope he will use this authority to enact drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs.

In the meantime, we pray for the thousands of Iowans still behind bars, their families and the many thousands more who will be subject to extreme sentencing policies in years to come if lawmakers choose not to act. Those prayers and our advocacy efforts are the best things we can do for them. Now it is time for our elected leaders to do their part.

I strongly share the view that "the greatness of America lies not in the federal government but in the ... people" and that the "virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us" should inspire the work of all government officials. To that end, if Senator Grassley is truly committed to these virtues, I hope he takes to heart the advice given by these faith leaders to move forward ASAP on "drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs."

Notably, as highlighted in this recent post about recent criminal justice reform essays from GOP leaders, a large number of leading GOP candidates seeking to become president seem to share the view that federal drug sentencing needs to be reformed ASAP.  Senator Ted Cruz, for example, has said this is simply a matter of common sense.  If that is true, I am not sure what Senator Cruz would call Senator Grassley's seemingly steadfast opposition to various drug sentencing reforms proposals that have garner lots of support from lots of different quarters.

Some recent related posts:

May 1, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 29, 2015

David Simon connects Baltimore's woes to the drug war

The Marshall Project has this interesting new feature interview with David Simon, under the headline "David Simon on Baltimore’s Anguish: Freddie Gray, the drug war, and the decline of 'real policing.'" The full piece merits a full read, and here is how it gets stated: 

David Simon is Baltimore’s best-known chronicler of life on the hard streets. He worked for The Baltimore Sun city desk for a dozen years, wrote “Homicide: A Year on the Killing Streets” (1991) and with former homicide detective Ed Burns co-wrote “THE CORNER: A YEAR IN THE LIFE OF AN INNER-CITY NEIGHBORHOOD” (1997), which Simon adapted into an HBO miniseries. He is the creator, executive producer and head writer of the HBO television series “The Wire” (2002–2008). Simon is a member of The Marshall Project’s advisory board. He spoke with Bill Keller on Tuesday.

BK: What do people outside the city need to understand about what’s going on there — the death of Freddie Gray and the response to it?

DS: I guess there's an awful lot to understand and I’m not sure I understand all of it. The part that seems systemic and connected is that the drug war — which Baltimore waged as aggressively as any American city — was transforming in terms of police/community relations, in terms of trust, particularly between the black community and the police department.  Probable cause was destroyed by the drug war.  It happened in stages, but even in the time that I was a police reporter, which would have been the early 80s to the early 90s, the need for police officers to address the basic rights of the people they were policing in Baltimore was minimized.  It was done almost as a plan by the local government, by police commissioners and mayors, and it not only made everybody in these poor communities vulnerable to the most arbitrary behavior on the part of the police officers, it taught police officers how not to distinguish in ways that they once did.

Probable cause from a Baltimore police officer has always been a tenuous thing. It’s a tenuous thing anywhere, but in Baltimore, in these high crime, heavily policed areas, it was even worse.  When I came on, there were jokes about, “You know what probable cause is on Edmondson Avenue? You roll by in your radio car and the guy looks at you for two seconds too long.”  Probable cause was whatever you thought you could safely lie about when you got into district court.

Then at some point when cocaine hit and the city lost control of a lot of corners and the violence was ratcheted up, there was a real panic on the part of the government.  And they basically decided that even that loose idea of what the Fourth Amendment was supposed to mean on a street level, even that was too much. Now all bets were off. Now you didn't even need probable cause. The city council actually passed an ordinance that declared a certain amount of real estate to be drug-free zones. They literally declared maybe a quarter to a third of inner city Baltimore off-limits to its residents, and said that if you were loitering in those areas you were subject to arrest and search. Think about that for a moment: It was a permission for the police to become truly random and arbitrary and to clear streets any way they damn well wanted.

April 29, 2015 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Candidate Hillary Clinton to call for criminal justice reforms that would “end the era of mass incarceration”

Images (3)As reported in this Los Angeles Times article, all the media chasing around a notable presidential candidate are about to have a meaty and timely criminal justice reform story.  The headline of the LA Times piece is "Hillary Clinton to call for end to 'mass incarceration'," and here are excerpts:

Hillary Rodham Clinton will call Wednesday morning for far-reaching reforms in the criminal justice system that would “end the era of mass incarceration,” according to a campaign aide.

In a speech at Columbia University in New York City, Clinton will address the violence in Baltimore with plans for a new approach to punishing criminals, according to the aide, who requested anonymity because the proposal is not yet public.

The speech will mark the unveiling of Clinton’s first major policy proposal as a presidential hopeful, coming as candidates are under pressure to confront the unrest in Baltimore. The city erupted in rioting Monday night, following the funeral of Freddie Gray, an African American man who was mortally injured while in police custody.

The plan also appears to stem from the “listening tour” Clinton has been on since launching her campaign this month. In roundtable meetings with voters in the early-voting states of Iowa and New Hampshire, the drug issue played prominently. Clinton said at the meetings that she was alarmed by the stories people relayed to her about how drugs are infecting rural communities.

She began talking about her proposal at a campaign fundraiser in New York City on Tuesday night, a gathering of about 150 supporters who donated $2,700 each. “It’s heartbreaking,” Clinton said of Baltimore. “The tragic death of another young African American man. The injuries to police officers. The burning of people’s homes and small businesses. We have to restore order and security. But then we have to take a hard look as to what we need to do to reform our system.”

Clinton said the nation must “reform our criminal justice system.” As she called to end mass

incarceration for nonviolent offenders, donors erupted in applause. In Wednesday’s address, Clinton will also join the chorus of politicians demanding that police officers everywhere be equipped with body cameras. Clinton will argue they are necessary “to improve transparency and accountability in order to protect those on both sides of the lens,” according to the aide.

The sentencing reforms Clinton plans to champion focus on nonviolent offenders. They would include shifting those found guilty of drug crimes from lockups to drug treatment and rehabilitation programs. Other alternative punishments would also be explored for low-level offenders, particularly minors. Mental health programs would get a boost in funding.

“She will also discuss the hard truth and fundamental unfairness in our country that, today, African American men are far more likely to be stopped and searched by police, charged with crimes and sentenced to longer prison terms,” the aide wrote in an email.

I am going to be off-line for most of the rest of today, but I am going to be very eager to learn about (and blog about) late tonight the specifics of what Candidate Clinton is going to be advocating in order to end the era of mass incarceration.  I am hoping that the full Clinton plan will be somewhere on this Clinton campaign official website, though it is right now hard to find anything substantive on that website.

Based on this press report, it sounds as though she is not going to be advocating too much more than what nearly all the other presidential candidates, including all the Republican candidates, have been talking about for some time.   Moreover, a genuine understanding of how best to "end the era of mass incarceration" has to include some account for how the policies of President William Clinton contributed significantly to that era.  But perhaps, rather than already expect to be disappointed, the new Clinton plan will have something at least as bold as what GOP candidate Rand Paul has been proposing already for a number of years.

April 29, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 28, 2015

Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht

This new Forbes article, headlined "Ulbricht's Defense Calls For Delayed Sentencing After Feds Reveal Six Alleged Silk Road Drug Overdose Deaths," reports on a notable new development in the lead up to the sentencing of a notable federal defendant.  Here are the details:

The twists and turns in the Silk Road case aren’t slowing down as Ross Ulbricht’s sentencing approaches. According to a letter filed Friday, the government claims that six people allegedly died of overdosing on drugs bought on the Silk Road. Two of their parents will be speaking at Ulbricht’s sentencing, which is currently scheduled for May 15, 2015.

Because of this, Ulbricht’s defense is asking for his sentencing to be postponed for at least one month. In a letter on Friday, Joshua Dratel requested an adjournment of the sentencing, which is currently less than three weeks away. By Dratel’s logic, it shouldn’t matter to the prosecution, since Ulbricht is in jail already awaiting sentencing, but it would give the defense time to prepare.

The defense wants preparation time to respond to the government’s revelation on April 16 that there were “six alleged overdose deaths supposedly attributable to drugs purchased from vendors on the Silk Roads.” The parents of two of the alleged overdose victims will be speaking from 10-15 minutes each at the sentencing, according to a document filed by the prosecution on April 17. The government intends to use these deaths as part of the context for the sentencing and the victim impact assessment.

Dratel says the information the defense has received about the six deaths is “woefully incomplete.” According to the letter, the defense hasn’t seen evidence that the drugs were purchased on the Silk Road or certain autopsy, toxicology, and psychiatric information for the six individuals. Additionally, Dratel asked for the identities and statements of the two parents who will be speaking at the sentencing in order to avoid being “blindsided.”

While the government seems to [be] planning to hammer home its argument that the Silk Road was a dangerous and illegal operation with Ulbricht at the helm with these parents’ testimonies, the defense plans to argue the opposite–that the Silk Road actually made drug use safer. In the letter, Dratel states that the Silk Road “reduced the dangers of substance abuse, and consciously and deliberately incorporated ‘harm reduction’ strategies.” The defense has been working with experts, according to the letter, and needs more time to bring those witnesses to testify in person in response to the government....

After being arrested in a San Francisco library in October 2013 for allegedly running the Silk Road, Ulbricht faced trial in January 2015. After three weeks of trial and 3.5 hours of jury deliberation, he was found guilty of seven charges connected to his role as the Dread Pirate Roberts. Since then, he’s been in jail awaiting sentencing while his lawyers fought first for re-trial and now for delayed sentencing.

Prior related post:

April 28, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Wednesday, April 22, 2015

Is resignation of current DEA head a very big moment for federal marijuana policy?

The question in the title of this post is prompted by a number of stories I have seen in the wake of yesterday's news that Michele Leonhart is resigning as Administrator of the Drug Enforcement Administration.  Here are links to some of these stories:

The last story linked here highlights what will really determine the answer to the question in the title of this post: if President Obama nominates somebody for this position who expresses openness to federal marijuana reforms and a serious commitment to a more public-health oriented approach to all drug enforcement issues (e.g., Dr. Sanjay Gupta?), the transition at the top of DEA could end up being a very big deal.

Cross-posted at Marijuana Law, Policy & Reform

April 22, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 21, 2015

By 6-3 vote, SCOTUS finds Fourth Amendment violation from stop at start of federal drug prosecution

The US Supreme Court handed down a notable Fourth Amendment ruling this morning in Rodriguez v. US, No. 13-9972 (S. Ct. April 21, 2015) (available here).  Though not a sentencing case, I cannot help but wonder if some votes on the case were somewhat influenced by the federal drug war setting that raised the import and stakes for the Fourth Amendment issue brought to the Justices.  Here, for starters, is the start of this Court's opinion per Justice Ginsburg:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitu­tion’s shield against unreasonable seizures.  A seizure justified only by a police-observed traffic violation, there­ fore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407.  The Court so recog­nized in Caballes, and we adhere to the line drawn in that decision.

Notably, this federal criminal case started with a seemingly routine traffic stop based on a Nebraska driver veering to avoid a pothole and ended with a federal drug prosecution requiring the defendant to serve a mandatory minimum 5-year federal prison term for possessing 50 or more grams of meth with intent to distribute. I cannot help but think these contextual realities played some (perhaps unconscious) role in a majority of the Justices concluding that the extension of the traffic stop was unconstitutional with this kind of statement: "Highway and officer safety are interests different in kind from the Government’s endeavor to de­tect crime in general or drug trafficking in particular."

Here is how the primary dissent by Justice Thomas in Rodriguez gets started:

Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reason- able manner.” Illinois v. Caballes, 543 U. S. 405, 408 (2005).  The only question here is whether an officer executed a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes.  Because the stop was reasonably executed, no Fourth Amendment violation occurred.  The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices.  It was also unnecessary, as the officer possessed reasonable suspicion to continue to hold the driver to conduct the dog sniff.  I respectfully dissent.

Here is how a distinct dissent by Justice Alito in Rodriguez gets started:

This is an unnecessary, impractical, and arbitrary decision.  It addresses a purely hypothetical question: whether the traffic stop in this case would be unreasonable if the police officer, prior to leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable suspicion that the car contained drugs.  In fact, however, the police officer did have reasonable suspicion, and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.

April 21, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Monday, April 20, 2015

"Local Cook County Prosecutors To Focus On Treatment Over Prison For Small-Time Drug Cases"

The title of this post is the headline of this notable local news story emerging today from Chicago.  Here are the details:

Cook County prosecutors were set to announce major changes in how they prosecute low-level drug cases, including sending more nonviolent drug offenders to treatment, rather than prison.

State’s Attorney Anita Alvarez was scheduled to announce reforms to how her office handles minor drug cases, including dismissal of all future misdemeanor marijuana cases. The move also is expected to cover how prosecutors handle cases involving small amounts of other drugs; including ecstasy, cocaine, and heroin. The program would be focused on defendants with less than three arrests or citations for misdemeanor drug charges.

The announcement comes on April 20, also known as “4-20” day, in reference to a term used by marijuana smokers as slang for “lighting up,” but officials said the timing of the announcement and the date were only coincidental.

Alvarez was expected to detail the new drug prosecution strategy Monday morning, as part of an effort to keep nonviolent repeat drug offenders out of jail, and instead treat such cases as a public health issue. A spokeswoman for Alvarez’s office said, defendants currently facing a Class 4 felony drug possession charge could be sentenced to up to 3 years in prison, and a $25,000 fine. Her proposed changes to drug prosecutions would mean those same defendants would be sent to treatment programs instead of prison.

The move could free up prosecutor and law enforcement resources. In Cook County, such Class 4 felony drug cases made up 25 percent of all felony prosecutions last year. It was not immediately clear when the reforms would go into effect, but the changes would not affect pending cases already in the system.

April 20, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Intricate federal criminal law statutory questions on SCOTUS docket this week

Most casual Supreme Court fans are surely looking ahead to next week's oral arguments in the same-sex-marriage and lethal injection cases.  But this week brings two other exciting and intricate cases before SCOTUS for federal criminal justice fans, as these SCOTUSblog brief summarizes reveal: 

Johnson v. US, No. 13-7120: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act [and whether ACCA's residual clause is unconstitutionally vague].

McFadden v. US, No. 14-378: Whether, to convict a defendant of distribution of a controlled substance analogue -- a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) -- the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Regular readers know that the Johnson case is getting a second argument this week after SCOTUS asked the parties to brief the constitutional issue it raised on its own after the first oral argument. And helpful Rory Little via SCOTUSblog provides these informative new posts with more on what can be expected in this week's arguments:

In addition, Garrett Epps has this extended new Atlantic piece discussing both Johnson and McFadden headlined "Too Vague to Be Constitutional: Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court."

April 20, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 07, 2015

More reflections on Prez Obama's recent commutations

Writing in Forbes, Jacob Sullum has this new commentary about last week's notable clemency news headlined "Obama Steps Up Commutations, Feeding Drug War Prisoners' Hopes."  Here are excerpts: 

Obama’s latest batch of commutations, which doubled his total in a single day, suggests that the president, whose clemency record during his first term was remarkably stingy, is beginning to make up for lost time. Last year the Justice Department signaled a new openness to clemency petitions, laying out criteria for the sort of applications the president wanted to see. An unnamed “senior administration official” told Yahoo News the new guidelines could result in commutations for “hundreds, perhaps thousands” of federal prisoners by the end of Obama’s second term. The president will have to pick up the pace to reach that goal. But his avowed interest in ameliorating the egregious injustices inflicted by federal drug laws seems to be more than rhetorical.

Most of the drug offenders whose sentences Obama has shortened so far, including 13 of the 22 prisoners whose petitions he granted on Tuesday, were convicted of crack cocaine offenses. There is a good reason for that: Crack sentences are especially harsh, and although Congress reduced them in 2010, it did not make the changes retroactive. That means thousands of crack offenders are still serving terms that almost everyone now agrees are too long.

The Smarter Sentencing Act, which was approved by the Senate Judiciary Committee last year but never got a floor vote, would address that problem by making the 2010 changes retroactive. The bill was reintroduced in February, but its prospects are uncertain. In the meantime, Obama has the power to bring crack sentences in line with what the law currently deems appropriate.

With an estimated 8,800 prisoners who could benefit from retroactive application of shorter crack sentences, there is plenty of room for more acts of mercy like these. But the conventional wisdom is that commutations cannot help more than a tiny percentage of those prisoners. “While Mr. Obama has pledged to make greater use of his clemency power,” The New York Times reported on Tuesday, “the White House is unlikely to make a sizable dent in the prison population. Thousands of prisoners are serving time for drug sentences under the old, stricter rules.”

It’s true that commuting thousands of sentences, as that anonymous administration official quoted by Yahoo News envisioned, would be historically unprecedented. Yet it is clearly within the president’s constitutional authority, and there is less need for a careful, case-by-case weighing of each applicant’s merits when there is already a consensus that the mandatory minimums imposed on crack offenders between 1986 and 2010 were inappropriately harsh.

But let’s not get ahead of ourselves. Despite the concerns he expressed about our excessively punitive criminal justice system while running for president, Obama issued a grand total of one commutation during his first four years in office and finished his first term with a good shot at leaving behind one of the worst clemency records in U.S. history.

Prior related posts:

April 7, 2015 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, April 06, 2015

What would it mean for DEA and DOJ to "defeat the Washington machine and unleash the American dream”?

The question in the title of this post is prompted by this new Politico article about the notable slogan to be used by a notable new presidential candidate.  The piece is headlined "Rand Paul unveils populist, anti-establishment slogan," and here are excerpts:

Sen. Rand Paul (R-Ky.) gave POLITICO a sneak peek at the slogan he will unveil at his presidential campaign announcement on Tuesday: “Defeat the Washington machine. Unleash the American dream.” The slogan, beneath the RANDPAC logo of a torch flame, will set the tone as the senator kicks off a five-day, five-state announcement tour — starting in Kentucky and then going to New Hampshire, South Carolina, Iowa and Nevada (plus a Friday night fundraiser in Newport Beach, Calif.).

The slogan is designed to evoke populist, anti-establishment themes that would work in both the primaries and the general election. A Paul adviser said of the slogan: “You could say that is a hat tip to Hillary — a subtle contrast to Hillary. But why wouldn’t that also apply to Jeb? Or someone who has never had a [recent] job outside elected office — Scott Walker?”

Advisers say Paul’s top issues will include a flat tax, IRS reform, term limits, privacy and justice reform.

As regular readers know, Senator Rand Paul has been a leading and potent voice for federal drug war and federal sentencing reform for a number of years. The US Department of Justice is a big part of the "Washington machine," and many folks interested in marijuana legalization are looking to live the American dream of working in this new industry without fear that the Drug Enforcement Agency will come after them. Though I doubt Senator Paul will be making these federal criminal justice issues his first talking point in his coming stump speeches, I am confident and excited that he is likely to be talking more about these important federal criminal justice issues than any other presidential candidate ever has in recent decades.

April 6, 2015 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 31, 2015

Prez Obama starts to "walk the walk" on clemency by granting 22 new drug offense commutations

Long-time readers know I have long complained about Prez Obama's failure to make regular use of his clemency power, and I have been especially critical over the last year when we have heard the President and his agents "talk the talk" a lot about a new clemency initiative, but not actually "walk the walk" by granting relief in a significant number of cases.  But today, as reported in this USA Today article, may finally mark the start of a truly new clemency era:

President Obama commuted the sentences of 22 convicted federal prisoners Tuesday, shortening their sentences for drug-related crimes. Eight of the prisoners who will have their sentences reduced were serving life sentences. All but one of the 22 will be released on July 28.

The White House said Obama made the move in order to grant to older prisoners the same leniency that would be given to people convicted of the same crimes today. "Had they been sentenced under current laws and policies, many of these individuals would have already served their time and paid their debt to society," White House Counsel Neil Eggleston said in a statement. "Because many were convicted under an outdated sentencing regime, they served years—in some cases more than a decade—longer than individuals convicted today of the same crime."

In issuing the commutations Tuesday, Obama has more than doubled the number he's granted in his presidency. Before Tuesday, he had issued just 21 and denied 782 commutations in his more than six years. It was the most commutations issued by a president in a single day since President Clinton issued 150 pardons and 40 commutations on his last day in office.

And it could represent the crest of a new wave of commutations that could come in Obama's last two years in office. Last year, the Justice Department announced a new clemency initiative to try to encourage more low-level drug offenders to apply to have their sentences reduced. That resulted in a record 6,561 applications in the last fiscal year, at least two of which were granted commutations Tuesday, according to the Justice Department....

Obama wrote each of the 22 Tuesday, saying they had demonstrated the potential to turn their lives around. "Now it is up to you to make the most of this opportunity. It will not be easy, and you will encounter many who doubt people with criminal records can change," Obama wrote. "I believe in your ability to prove the doubters wrong."

Of the 22 commutations granted Tuesday, 17 were for possession or trafficking in cocaine. The others were for methamphetamine, heroin and marijuana. One was also convicted of a gun charge in addition to cocaine possession. Their convictions cover a 14-year span from 1992 to 2006.

A list of the 22 individuals receiving commutations today is available via this official White House press release, and the White House blog has this new entry by Neil Eggleston titled "Upholding the Principle of Fairness in Our Criminal Justice System Through Clemency." Here is an excerpt from that entry:

Building on his commitment to address instances of unfairness in sentencing, President Obama granted 22 commutations today to individuals serving time in federal prison. Had they been sentenced under current laws and policies, many of these individuals would have already served their time and paid their debt to society. Because many were convicted under an outdated sentencing regime, they served years — in some cases more than a decade — longer than individuals convicted today of the same crime.

In total, the 22 commutations granted today underscore the President’s commitment to using all the tools at his disposal to bring greater fairness and equity to our justice system. Further, they demonstrate how exercising this important authority can remedy imbalances and rectify errors in sentencing. Added to his prior 21 commutations, the President has now granted 43 commutations total. To put President Obama’s actions in context, President George W. Bush commuted 11 sentences in his eight years in office....

While today’s announcement represents important progress, there’s more work ahead. The Administration will continue to work to review thoroughly all petitions for clemency. And, while commutation is an important tool for those seeking justice and fairness in our penal system, it is nearly always an option of last resort, coming after a lengthy court process and many years behind bars. That is why President Obama is committed to working with Democrats and Republicans on sensible reforms to our criminal justice system that aim to give judges more discretion over mandatory minimum sentencing. As the Department of Justice has noted, mandatory minimum sentences have at times resulted in harsher penalties for non-violent drug offenders than many violent offenders and are not necessary for prosecutions at this level.

Already, one significant reform has become law. In 2010, the President signed the Fair Sentencing Act, which reduced the disparity in the amounts of powder cocaine and crack cocaine required for the imposition of mandatory minimum penalties. The President is encouraged by the bipartisan support for improving our criminal justice system, including promising legislation that would implement front-end changes in sentencing. In addition, he supports bipartisan efforts to provide back-end support through better education and job training for those currently incarcerated and to reform of our juvenile justice system to build on the significant reductions in the number of youth being held in secure facilities.

March 31, 2015 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, March 26, 2015

Sex, drugs and . . . the real reason the DEA is so eager to preserve the drug war?

This new ABC News report on the details emerging from a DOJ audit of the DEA provides examples of the latest variation on the sort of public corruption that has long been endemic to most prohibition regimes.  The piece is headlined "DEA 'Sex Parties' Funded by Drug Cartels, IG Report Says," and here are excerpts: 

Senior Drug Enforcement Administration agents working overseas allegedly participated in “sex parties” with prostitutes funded by drug cartels, according to a newly-released Department of Justice Inspector General report on the handling of sexual misconduct allegations by law enforcement agencies.

The conduct occurred over a period of years, according to the report.  In addition to soliciting prostitutes, the foreign officers interviewed for the report allege three DEA supervisory special agents were “provided money, expensive gifts, and weapons from drug cartel members."

Some DEA agents who participated in the parties denied knowing about cartel involvement, but the IG report says “information in the case files suggested they should have known the prostitutes in attendance were paid with cartel funds.”

The sex parties occurred in government leased living quarters where “agents’ laptops, BlackBerry devices and other government-issued equipment were present,” posing a security risk and “potentially exposing them to extortion, blackmail, or coercion.” In another instance, two DEA special agents allegedly solicited prostitutes for a farewell party for a senior DEA official.

That official, an acting assistant regional director, allegedly had “sexual relations with prostitutes” and there were “allegations operational funds were used to pay for the party and the prostitutes,” according to the report. The report also alleges that one prostitute was assaulted by someone associated with DEA supervisors following a payment dispute. The report was critical of DEA’s treatment of allegations of sexual misconduct, often dealing with incidents as local management issues and not reporting information up the chain of command.

I sincerely hope that this ugly report of ugly DEA activities and corruption concerns only a few bad apples, and I am confident it is not representative of the behavior of the vast majority of DEA officials and agents. Nevertheless, stories like this one reinforce my fear that at least some drug warriors are not too concerned about casualties in the war on drugs because they themselves often end up as beneficiaries of all the warfare.

March 26, 2015 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

New report documents huge drop in Colorado marijuana arrests since legalization

Download (7)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:

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.

March 21, 2015 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

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).

March 12, 2015 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

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

March 9, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

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:

Cross-posted at Marijuana Law, Policy and Reform

March 4, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

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.

March 2, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

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).

March 2, 2015 in Clemency and Pardons, Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

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.

February 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

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

La-me-g-prop47-crimeThis 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.

February 22, 2015 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

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:

February 20, 2015 in Collateral consequences, Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

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:

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

February 13, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, February 08, 2015

Highlighting the role of prosecutorial activity in modern mass incarceration

Images (3)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:

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....

Earned-time credits....

Easing up mandatory minimums....

Juvenile-justice reform....

Reducing recidivism....

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?

Ross-ulbricht-600x450This 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.

February 5, 2015 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack

Wednesday, February 04, 2015

Sign of the drug war times: risk-management review of state drug-law reforms

There are many diverse signs, and many diverse consequences, of our modern (retrenching?) drug war, especially with respect to state-level reform of marijuana prohibitions.  One such interesting sign and consequences arrived in my e-mail this morning via this link to this post by a risk management firm titled "Recap of Drug-Related State Legislation Passed in 2014." This helpful resource is introduced this way:

One trend that hiring managers should take note of in 2015 is the increased fragmentation of state drug test regulations.  Exactly half of all states passed legislation in 2014 that touches upon or completely regulates drug testing in some way or another.

With more and more attention being given to developments in medical and recreational marijuana laws, it may be hard to imagine that the United States is not trending away from drug testing in the workplace.  It is true that public opinion about certain controlled substances is shifting, but legislation is still being passed that creates provisions for drug testing employees, banning synthetic substances, and penalizing intoxicated motorists.

The diversity of laws and court decisions produced in 2014 is proof that the line between pro-employer and pro-employee is vague and becoming more difficult to draw-out.  As laws in some states provide new “rights” to individuals to consume intoxicating substances, other laws in those states as well as other places reinforce the rights of employers and citizens seeking to ensure safe workplaces and communities.

I am not, of course, an expert on labor and employment law. But this posting provides perhaps more evidence that labor and employment lawyers need to be experts on modern drug law reforms in order to serves their clients effective.

February 4, 2015 in Collateral consequences, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, January 30, 2015

Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting

As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated.  The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:

Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.

The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.

In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.

The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.

The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.

In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.

The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.

Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.

The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said.  "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."

I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.

January 30, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, January 28, 2015

Did feds just win the drug war?: kingpin twin drug dealers get kingly sentencing break thanks to cooperation

ImagesAs detailed in this AP story, headlined "Trafficking Twins Get Sharply Reduced Sentences," the sentencing benefits of cooperating with the government was on full display yesterday in a Chicago federal courtroom. Here are the details:

Identical twin brothers who ran a drug-trafficking ring that spanned much of North America were sentenced Tuesday to 14 years in prison after a judge agreed to sharply reduce their penalty as a reward for becoming government informants and secretly recording Mexico's most notorious drug lord.

In a rare courtroom display, it was a federal prosecutor who poured praise on Pedro and Margarito Flores, portraying them as among the most valuable traffickers-turned-informants in U.S. history and describing the courage they displayed in gathering evidence against Joaquin "El Chapo" Guzman and other leaders in Mexico's Sinaloa cartel.

With credit for time served awaiting sentencing and for good behavior in prison, the brothers, now 33, could be out in as little as six years.

Chief U.S. District Judge Ruben Castillo likened Americans' sense of security to walls and scolded the brothers for introducing drugs that fueled violence and despair. "You devastated those walls. You knocked them down," he said.  The twins' cooperation was the only thing that spared them from an actual life sentence, Castillo told the brothers. But, he added, they would still serve a life sentence of sorts — having to look over their shoulders the rest of their lives in constant fear of a deadly attack by an assassin working for the cartel they betrayed.

Castillo said the twins were the most significant traffickers ever in his court.  But he said he had also never seen traffickers at the height of their power and wealth come forward to offer to become government witnesses, as the siblings had.

The twins appeared in court with the same olive-green clothes and the same closely cropped haircuts. Both kept tapping one foot nervously throughout the hourlong hearing. Just before the judge imposed a sentence, each walked to a podium separately to speak, appearing uneasy. "I'm ashamed. I'm embarrassed. I'm regretful," Margarito Flores said. "There is no excuse."

So successful was their criminal enterprise that the jewelry-loving, Maserati-driving twins smuggled $1.8 billion — wrapped in plastic and duct tape — into Mexico, according to prosecutors....

Prosecutor Mike Ferrara had asked for a sentence of around 10 years. He noted the twins' cooperation led to indictments of Guzman and more than 50 others. The twins began cooperating with agents in 2008 and engaged cartel leaders for months, sometimes switching on recorders and shoving them in their pockets. They continually risked death, Ferrara said.

The 5-foot-4 twins' trafficking careers soared after they left Chicago to live in Mexico around 2004. In mid-2005, they met with Guzman in his secret mountain compound to cut major drug deals, government filings said. The brothers ran their operation from a Mexican ranch. Their network stretched from its Chicago hub to New York, Detroit and Washington, D.C., and to Los Angeles and Vancouver, British Columbia....

Later Tuesday, Chicago-based U.S. Attorney Zachary Fardon announced new charges against several Sinaloa figures stemming from the twins' cooperation. Asked about their lenient sentences and the message it sent to other would-be cartel traffickers, Fardon said it should demonstrate, "You can right some of what you did wrong ... by helping the government."

So does this all mean that the federal drug war can be declared officially over, and that we can claim the good guys officially won this 50-year costly war?  After all, this was a sentencing of two of the most significant drug traffickers, and they have become the "most valuable traffickers-turned-informants in U.S. history."  Surely this must scare off and deter all other current and would-be drug dealers and all the trillions in taxpayer dollars spent on the drug war has now been vindicated as money well spent.  

Of course, I am asking the question above and in the title of this post with my tongue firmly planted in my cheek.  A key problem with the drug war, as I see it, is that even a huge drug war "victory" in catching and prosecuting some drug dealers typically will make it that much more valuable and enticing for other drug dealers to seek to replace the captured criminals.  I fear that , unless and until illegal drug demand is reduced,  illegal drug suppliers will be plentiful in part because the drug war makes their activities potentially much more lucrative.  

January 28, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 20, 2015

"End of an Era? The Impact of Drug Law Reform in New York City"

The title of this post is the title of this notable new report released today by the The Vera Institute of Justice.  Here is a description of the report I received today via an e-mail from The Vera Institute of Justice:

Enacted in 1973, New York State’s Rockefeller Drug Laws mandated lengthy prison sentences for people convicted of a range of felony drug offenses.  This heralded a wave of mandatory sentencing statutes that swept the nation, contributing to dramatic increases in state prison populations and fueling the racial disparities that have come to characterize the U.S. criminal justice system.  In 2009, however, the Rockefeller Drug Laws were essentially dismantled by the latest in a series of reforms that eliminated mandatory minimum sentences for the possession, use, or small-scale sale of illegal drugs and increased eligibility for diversion treatment.

In End of an Era? The Impact of Drug Law Reform in New York City, researchers from the Vera Institute of Justice, John Jay College of Criminal Justice, and the School of Criminal Justice at Rutgers University examine the impact of reform soon after implementation and suggest mid-course corrections.  The research team compared cases pre and post-reform to assess changes in the use of jail and prison, rates of diversion to treatment, recidivism, and cost. Researchers also interviewed 35 criminal justice stakeholders to assess their perceptions of the impact of drug law reform.  The National Institute of Justice-funded study, which focused on New York City where the majority of the state’s prison population is from, found that drug law reform, as it functioned in the city soon after the laws were passed, led to a 35 percent rise in the rate of diversion among eligible defendants. Although the use of diversion varied significantly among the city’s five boroughs, it was associated with reduced recidivism rates, and cut racial disparities in half.

January 20, 2015 in Criminal justice in the Obama Administration, Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Friday, January 16, 2015

AG Holder announces notable new limits on civil forfeitures to fund local police

As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.

January 16, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack