Monday, March 21, 2016

SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform

Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws.  Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado.  This is huge news for state marijuana reform efforts, but not really all that surprising.  (It would have been bigger news and surprising if the motion was granted.)

Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito.  Here is how this dissent stats and ends:

Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado.  I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....

Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana.  See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II).  Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.”  Gonzales v. Raich, 545 U.S. 1, 12 (2005).  Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana.  See Colo. Const., Art. XVIII, §16.  Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015).  Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a).  And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).

In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado.  The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws.  See Complaint ¶¶54–65.  They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana.  Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16.  The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.

The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a).  The plaintiff States have alleged significant harms to their sovereign interests caused by another State.  Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.

Cross-posted at Marijuana Law, Policy & Reform.

March 21, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (6)

Sunday, March 20, 2016

"Black Kids Less Likely To Use Hard Drugs Than Whites, Still Go To Jail More"

The title of this post is the headline of this recent posting at Medical Daily providing a summary this new research paper titled "Health Disparities in Drug-and Alcohol-Use Disorders: A 12-Year Longitudinal Study of Youths After Detention" published in the American Journal of Public Health.  Here are excerpts from the summary:

The United States is plagued with many forms of substance abuse, and youth leaving juvenile detention are especially vulnerable. Many think African Americans in this group are especially prone to drug use, but a new study says this stereotype is unfounded. According to researchers at Northwestern, abuse of and dependence on cocaine, hallucinogens, amphetamines, and opioids is less common among African Americans than among non-Hispanic whites.

The thorough study is the first of its kind. Researchers followed the youths into their late 20s, for up to 12 years after release. At that point, non-Hispanic whites had 30 times the odds of becoming addicted to cocaine as African Americans did. “Those findings are striking, considering the widely accepted stereotype of African Americans as the most prevalent abusers of ‘hard drugs,’” said Linda A. Teplin, senior author of the study and professor of Psychiatry and Behavioral Sciences at Northwestern University Feinberg School of Medicine, in a press release.

Though whites were more likely to abuse or depend on hard drugs, their incarceration numbers didn’t follow the same pattern. According to an estimate by the U.S. Department of Justice, among males born in 2001, one in three African Americans and one in six Hispanics will be incarcerated at some point in their lives, compared with just one in 17 Caucasians. “We must address — as a health disparity — the disproportionate incarceration of African Americans,” Teplin said.

In terms of differences between the sexes, the study found that 91.3 percent of previously delinquent male youths and 78.5 percent of females had had a substance abuse disorder by their late 20s. However, males were more likely to abuse alcohol and marijuana, and females were more likely to exhibit opiate, cocaine, amphetamine, and sedative addiction.

March 20, 2016 in Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5)

Friday, March 18, 2016

Making the (Trumpian?) case for winning the drug war via full legalization

HarpersWeb-Cover-201604-302x410_black This cover story of the April 2016 issue of Harper's magazine is authored by Dan Baum and is headlined "Legalize It All: How to win the war on drugs."  And, as I mean to suggest via  the headline of this post, this article may be channeling what GOP Prez candidate front-runner Donald Trump really thinks about how to improve modern drug policy in the US.  (Recall that I had this post on my marijuana reform blog, way back when Trump first announced his serious run for the Oval Office last summer, which highlights that Trump not all that long ago had once suggested full legalization would be the only way to "win" the drug war.)  Here are is an except from the first part of the lengthy Harper's piece:

Nixon’s invention of the war on drugs as a political tool was cynical, but every president since — Democrat and Republican alike — has found it equally useful for one reason or another. Meanwhile, the growing cost of the drug war is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight black men has been disenfranchised because of a felony conviction.

As long ago as 1949, H. L. Mencken identified in Americans “the haunting fear that someone, somewhere, may be happy,” an astute articulation of our weirdly Puritan need to criminalize people’s inclination to adjust how they feel.  The desire for altered states of consciousness creates a market, and in suppressing that market we have created a class of genuine bad guys — pushers, gangbangers, smugglers, killers.  Addiction is a hideous condition, but it’s rare. Most of what we hate and fear about drugs — the violence, the overdoses, the criminality — derives from prohibition, not drugs. And there will be no victory in this war either; even the Drug Enforcement Administration concedes that the drugs it fights are becoming cheaper and more easily available.

Now, for the first time, we have an opportunity to change course. Experiments in alternatives to harsh prohibition are already under way both in this country and abroad. Twenty-three states, as well as the District of Columbia, allow medical marijuana, and four — Colorado, Washington, Oregon, and Alaska — along with D.C., have legalized pot altogether.  Several more states, including Arizona, California, Maine, Massachusetts, and Nevada, will likely vote in November whether to follow suit.

Portugal has decriminalized not only marijuana but cocaine and heroin, as well as all other drugs.  In Vermont, heroin addicts can avoid jail by committing to state-funded treatment. Canada began a pilot program in Vancouver in 2014 to allow doctors to prescribe pharmaceutical-quality heroin to addicts, Switzerland has a similar program, and the Home Affairs Committee of Britain’s House of Commons has recommended that the United Kingdom do likewise.  Last July, Chile began a legislative process to legalize both medicinal and recreational marijuana use and allow households to grow as many as six plants.  After telling the BBC in December that “if you fight a war for forty years and don’t win, you have to sit down and think about other things to do that might be more effective,” Colombian president Juan Manuel Santos legalized medical marijuana by decree. In November, the Mexican Supreme Court elevated the debate to a new plane by ruling that the prohibition of marijuana consumption violated the Mexican Constitution by interfering with “the personal sphere,” the “right to dignity,” and the right to “personal autonomy.”  The Supreme Court of Brazil is considering a similar argument.

Depending on how the issue is framed, legalization of all drugs can appeal to conservatives, who are instinctively suspicious of bloated budgets, excess government authority, and intrusions on individual liberty, as well as to liberals, who are horrified at police overreach, the brutalization of Latin America, and the criminalization of entire generations of black men.  It will take some courage to move the conversation beyond marijuana to ending all drug prohibitions, but it will take less, I suspect, than most politicians believe.  It’s already politically permissible to criticize mandatory minimums, mass marijuana-possession arrests, police militarization, and other excesses of the drug war; even former attorney general Eric Holder and Michael Botticelli, the new drug czar — a recovering alcoholic — do so. Few in public life appear eager to defend the status quo.

A few prior related posts:

March 18, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10)

Wednesday, March 16, 2016

"Why many black voters don't blame Hillary for tough-on-crime laws"

The title of this post is the headline of this notable Christian Science Monitor article from earlier this week which strikes me as especially timely given that Hillary Clinton's success in the most recent state primaries would seem to put her on a near-certain path to a Prez candidate nomination. Here are excerpts from the lengthy piece:

In the late 1980s and early 1990s, [gang violence and open-air drug dealing] was the everyday reality in African-American neighborhoods around the country. It was in this context that black political leaders, under pressure from their communities, pleaded for the federal government to address the drug problem. The now infamous response from the federal government was a series of bipartisan “tough on crime” laws that, instead of just cracking down on drugs and violent crime as intended, filled the country’s prisons to a breaking point, disproportionately with young black men.

Now amid bipartisan efforts to undo many of these laws, and the rise of a new generation of civil rights activists, this history has created a strange dissonance. Black Lives Matter activists have criticized Hillary Clinton, the front-runner for the Democratic nomination, for supporting these tough-on-crime policies as first lady in the ’90s. But Mrs. Clinton has ridden overwhelming support from black voters to a commanding lead in the Democratic primaries. Earlier this month, the urban black vote helped her edge out a victory in the Massachusetts primary over challenger Sen. Bernie Sanders.

“If you read some intellectuals on the left, they’d suggest there should be a grudge against the Clintons, but I think the primary results show there isn’t a grudge at all,” says Michael Fortner, a professor of urban studies at the City University of New York and author of the book “Black Silent Majority.”

Part of the reason, he notes, is that black communities are aware that for decades they were some of the loudest advocates for tough drug laws. Tough-on-crime policies, he adds, “weren’t something that just happened to black people, that were imposed on the black community…. Political leaders, mayors, and pastors played an important role in pushing for these policies.”

Another reason, he says, is that most black voters aren’t just concerned about criminal justice policy, past or present. “They’re also, like everybody else, concerned about paying their bills, they’re concerned about good schools, concerned about achieving the American dream,” he says....

“I think the African-American community, like Hillary Clinton, they’ve had to rethink their approach,” says Thomas Whalen, an associate professor of social sciences at Boston University. “And you have to. In a so-called drug war, you can’t be rigid in your position and hope to be ultimately successful — you have to be as flexible as possible based on the conditions on the ground.”...

For many decades, however, drugs were a priority.  As early as June 1970, for example, Ebony magazine published an article titled: “Blacks declare war on dope.”  In 1986, 16 of 19 African-American members of the House co-sponsored President Reagan’s Anti-Drug Abuse Act.  And eight years later, 22 members of the Congressional Black Caucus voted for Bill Clinton’s 1994 crime bill that boosted funding to police, expanded the death penalty, and created the “three strikes” sentencing law.

March 16, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Tuesday, March 15, 2016

"Is Proposition 47 to Blame for California's 2015 Increase in Urban Crime?"

The question in the title of this post is a question a lot of persons who are following the broader national debate over sentencing reform are asking (as highlighted via this post by Bill Otis over at Crime & Consequences). It is also the title of this new research report authored by a researcher at the Center on Juvenile and Criminal Justice. Here is the full textual of the introduction to the eight-page CJCJ report:

In November 2014, nearly 60 percent of California’s electorate voted to pass Proposition 47. This proposition made substantial sentencing reforms by reducing certain nonviolent, non-serious offenses, such as minor drug possession and shoplifting, from felonies to misdemeanors (CJCJ, 2014). Because the changes made by the new law applied retroactively, incarcerated people serving felony sentences for offenses affected by Proposition 47 were eligible to apply for resentencing to shorten their sentences or to be released outright.  Those who already completed felony sentences for Proposition 47 offenses could also apply to change their criminal records to reflect the reforms.

Critics of Proposition 47 contended it would increase crime by releasing those convicted of dangerous or violent felonies early (see “Arguments Against Proposition 47,” 2014). Opponents also suggested that reducing the severity of sentences for certain felonies would fail to deter people from committing crimes or completing court-ordered probation requirements.

In the initial months following the passage of Proposition 47, California’s jail population dropped by about 9,000 between November 2014 and March 2015 (the most recent date for which county jail figures are available at this time) (BSCC, 2016).  State prisons reported over 4,500 releases attributed to Proposition 47 (CDCR, 2016), for a total incarcerated population decline of more than 6 percent — a substantial decrease. Similar to the initial year after Public Safety Realignment took effect, January-June 2015 saw general increases in both violent and property crime in California’s cities with populations of 100,000 or more (Table 1).  During this period, homicide and burglary showed slight declines, while other Part I violent and property offenses experienced increases.

Is Proposition 47 to blame for the increases in reported urban crimes?  This report tests this question by comparing changes in crime rates, from January–June 2014 and January–June 2015, in California’s 68 largest cities to changes in: (a) county jail populations and (b) Proposition 47-related discharges and releases from prison to resentencing counties.

March 15, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, National and State Crime Data, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (4)

Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014

USA-JUSTICE-CLEMENCYRegular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been.  Here are just a few of my prior related posts on this front:

Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:

In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.

Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.

More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.

Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....

A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.

But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...

The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....

Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.

So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.

A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."

This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....

Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.

Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.

Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.

March 15, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, March 07, 2016

"Did Nancy Reagan's War on Drugs Backfire?"

The question in the title of this post is the headline of this intriguing new NBC News commentary by Tony Dokoupil. For reasons I will explain after an excerpt, I think this question is an unfair variation on the "When did you stop beating your wife?" question. But first, here are some excerpts:

It's one of the risks of a long and busy life: the threat that society will change its mind about your most important work. That happened to Nancy Reagan, the former first lady who died on Sunday at 94.  President Ronald Reagan's wife and closest adviser defined the drug panic of the 1980s, coining the phrase "Just Say No" and supporting her husband's rampaging war on drugs.  She often singled out marijuana as a special scourge, accusing dealers of taking "the dream from every child's heart."

But such positions have since slipped into disrepute in recent years, rejected even by many fellow Republicans. Nearly half the country has tried marijuana, meanwhile, and legal sales are booming in four states and counting.  Criminal justice reform, including reducing sentences for nonviolent drug convictions, has been a point of discussion on both sides of the 2016 presidential campaign.

Nancy Reagan never publicly recanted or so much as commented on her starring role in the drug war.  But with a look back at the origins of her and her husband's hardline policies, it's possible to trace the arc of one of America's most famous failures.

Ronald Reagan, eyeing a challenge to President Jimmy Carter, seemed to know that an attack on marijuana would tap into a growing displeasure with wayward teens, slack productivity and a society of apathetic Carter voters.  So in a major radio address in 1979 Reagan revealed what "science now knows," including the dubious "scientific facts" that smoking dope leads to cancer, sterility and "irreversible effects on the mental processes."  Never mind that the National Academy of Sciences had endorsed the idea of decriminalizing marijuana, finding "no convincing evidence" of its harmful effects.

The drug became an enemy of promise, the explanation for everything.  Why is your teenager refusing to cut the lawn?  Marijuana.  Why is your industry falling behind Japan's?  Marijuana.  Why do you have to lock your door at night? Hard drugs — which start with marijuana.

Nancy Reagan emerged as the most effective carrier of her husband's message.  She focused on almost nothing else during his presidency, beginning with an informal press conference aboard Air Force One in early 1982.  She told the press that drugs had become an epidemic.  Then she made her first stop in a cross-country swing, an open meeting of Straight Inc., a youth rehabilitation program in Florida....

Later on the same tour, during a visit to an elementary school in Oakland, California, she coined her famous phrase. An elementary school student asked her what he should do if anyone ever offered him pot. "Just say no!" she said.

Experts pounced.  The slogan was one of the most unsophisticated anti-drug messages of all time.  It suggested that drugs are evil, but you can quit them at any time.  Yet the phrase served a purpose.  It created what Nancy proudly called "an atmosphere of intolerance."  Other politicians compared drug dealers to vampires, murderers and traitors. And people began to associate pot with waste and dropouts....

In June 1982, Ronald Reagan appeared in the White House garden to officially declare a war on drugs.  "We're taking down the surrender flag that has flown over so many drug efforts; we're running up a battle flag.  We can fight the drug problem, and we can win. And that is exactly what we intend to do," he said.  Marijuana was the only drug to merit specific mention.

Regular readers surely know that I think demonizing marijuana was a mistake as part of the Reagan era "war on drugs." But I actually think Nancy Reagan's "just say no" voice in all this was not nearly as pernicious as this commentary is trying to suggest. Indeed, though an unsophisticated anti-drug message, the "just say no" mantra, in my view, continues to highlight and emphasize the fundamental individual reality at the base of many drug problems even though illegal drug use and abuse includes a lot more complicated issues.

The real problems resulting from the failed American war on drugs, in my view, did not at all emerge from Nancy Reagan urging individuals to just say no to drugs; the real problems flowed from waging the drug war with massive investments in big-government criminal justice system that too heavily invested in cops and cells rather than classrooms and counseling.

March 7, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (5)

Notable split Sixth Circuit ruling on (suspect) limits of retroactive guideline reductions

A split Sixth Circuit panel handed down today an interesting little sentencing opinion in US v. Taylor, No. 15-5930 (6th Cir. March 7, 2016) (available here). Actually, the majority opinion is, according to the dissent, more frustrating than interesting beause that opinion held that a district court, when reducing a sentence based on the retroactive reduced drug guideline, lacked any added discretion "to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance."  

Notably, federal prosecutors in this Taylor case agreed with the defendant (and the dissent) that the district court should have authority to take into account during sentence modification additional mitigating factors.  But the district court concluded that it lacked this authority, and the majority opinion on Taylor affirmed this conclusion. Judge Merritt expressed his frustration with this view in a short dissent that includes these points:

The mathematical percentage estimated for “substantial assistance” almost five years ago at the original sentencing is not a scientific fact, just a guess or speculation, and a new reduction upon resentencing that is “comparably less” (using the Guideline language) does not forbid a new sentence which takes into account such intangible factors as defendant’s additional assistance after the original sentence, her rehabilitation, as well as collateral damage to her family and other similar factors.  It does not forbid a reassessment of what has happened in the last five years.  Both the prosecutor and the defendant agreed that the sentence should not be limited to a nineteen percent reduction but have agreed to a thirty-three percent reduction, and there is no indication that Judge Jordan in the court below would not agree that this would be a more just sentence.  He thought only that the law did not give him the authority to impose the lower sentence....

I do not see why we must continue to take away from the sentencing judge the authority to use his or her best judgment in determining the sentence.  For these reasons and also for the policy reasons stated by Justice Stevens in his dissenting opinion in Dillon v. United States, 130 S. Ct. 2683, 2694-2705 (2010), I would remand to the district court for resentencing with the instruction that the district court is not bound by the nineteen percent reduction used years ago.  Times change.  The law has changed.  Our culture is changing its views about how long we should put people behind bars.  There is no good reason I can see that we should not allow the district judge to use his best judgment here and err on the side of mercy while at the same time reducing the government’s costs of incarceration.

March 7, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, February 29, 2016

Iran reportedly wages the "war on drugs" by executing the "entire adult male population" of a village!?!?!

There is much talk in the United States about causalities of all sorts from the tough ways in which US governments use criminal justice powers of all sorts to wage a "war on drugs."  But this FoxNews article reports on Iran waging the war with a whole new type of extreme powers.  The piece is headlined "Iran reportedly executes every adult man in one village for drug crimes," and here are the stunning details:

The entire adult male population of a village in southern Iran was executed for drug offenses last week as part of a country-wide crackdown on trafficking, state media report. Iran’s vice-president for women and family affairs, Shahindokht Molaverdi, revealed the news in an interview with the Mehr News agency last week, but did not say when or where the executions took place, or how many people were killed.

“We have a village in Sistan and Baluchestan province where every single man has been executed,” she said, according to The Guardian.  “Their children are potential drug traffickers as they would want to seek revenge and provide money for their families.  There is no support for these people.”

Molaverdi said President Hassan Rouhani’s government has brought back previously-axed family support programs.  “We believe that if we do not support these people, they will be prone to crime, that’s why the society is responsible for the families of those executed,” she said.

Human rights groups denounced the executions.  “The apparent hanging of every man in one Iranian village demonstrates the astonishing scale of Iran’s execution spree,” Maya Foa, from the anti-death penalty group Reprieve, told The Guardian.  “These executions — often based on juvenile arrests, torture, and unfair or nonexistent trials — show total contempt for the rule of law, and it is shameful that the UN and its funders are supporting the police forces responsible.”...

The Islamic Republic hanged 753 people in 2014, more than half of whom were convicted of drug-related offenses, the group said. In 2015, nearly 700 people were executed in Iran in the first half of the year alone, it added. The mass executions have led activists to call on the U.N. Office on Drugs and Crime to stop funding the Iranian government’s anti-narcotics campaign until Tehran ends the use of capital punishment for such offenses, The Guardian reports.

Candidly, I have a hard time wrapping my head around the notion that the Iranian government, in order to try to stop drug trafficking in the name of helping "women and family affairs," would execute the entire adult male population of a village in southern Iran (and then, apparently, will provide government support for the families of those executed). But, absent further reports that this story is inaccurate, I have to conclude that Iran believes no punishment is off-the-table and unjustified when trying to combat the scourge that is drug use and abuse.

February 29, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (6)

Sunday, February 28, 2016

"With Marijuana Legal, Why Are People Still Doing Life For Weed?"

Thie question in the title of this post is the headline of this article from The Kind (as well as a question that really does not have a satsfactory answer).  Here are excerpts: 

At least 30 people are currently serving life without parole for non-violent marijuana-related offenses. Save extraordinary events, they will die in prison. Overturning a law does not exonerate the people who were convicted of breaking the law when it was in effect. This means that even if marijuana is legalized tomorrow, those serving time for marijuana-related offenses will not be released.

“Most people don’t believe it,” says Beth Curtis, founder of Life for Pot, an organization that spotlights people who are serving life without parole for non-violent marijuana-only offenses.

One person who is scheduled to remain in jail until they die is Curtis’s brother, John Knock. “Twenty years ago I received a phone call informing me that my youngest brother had been indicted for a marijuana conspiracy in Florida,” Curtis explains on her site. “Our lives have never been the same.”...

 In 2008 she launched LifeForPot.com, which currently features 30 or so inmates with life or de facto life sentences (e.g., someone who is 50 years old and gets 50 years). Most of Curtis’s advocacy takes place offline, primarily through writing and sending information about individuals to congress, congressmen, and various groups that might take up the cause. “Actually a lot of people have,” she says. “Now when you Google ‘life for pot’, lots of stuff comes up. When I first started, it was just my site.”...

Without retroactive legislation, inmates serving life without parole for weed can only be released through clemency, in the form of a pardon or sentence commutation from the president (on the federal level) or from the governor (on the state level). (Group pardons are rare, but not entirely unprecedented.)

Out of the 95 sentence commutations granted by President Barrack Obama in December, two were serving life for marijuana-related crimes: Billy Dekel and Charles Cundiff.

Beth Curtis says she’s been advocating for both of them for years and plans to visit them once they’re out. Another inmate on Curtis’s radar, Larry Duke, was freed last March under a compassionate release program for inmates over 65.  While Curtis was elated by the three inmates’ release, she notes that Obama would need to seriously ramp up the number of commutations to make a meaningful dent in the population.

“These people need clemency to get any relief,” she says. “And for the old guys, it’s kind of important that it happens pretty soon. Their runway is a lot shorter. Not that the younger people shouldn’t be released also, but dying in prison is a particularly horrendous thought.  “Obama said that through clemency there would be thousands released,” Curtis adds. “I hope that that’s true. I hope and pray that that’s true.”   

Cross-posted at Marijuana Law, Policy and Reform

February 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (5)

Tuesday, February 23, 2016

Former UN Secretary-General Kofi Annan explains "Why It's Time to Legalize Drugs"

This new Huffington Post commentary, titled "Why It's Time to Legalize Drugs," is authored by Kofi Annan, who served as Secretary-General of the United Nations from 1997 to 2006. Here is part of his pitch:

Nowhere is [the] divorce between rhetoric and reality more evident than in the formulation of global drug policies, where too often emotions and ideology rather than evidence have prevailed.

Take the case of the medical use of cannabis. By looking carefully at the evidence from the United States, we now know that legalizing the use of cannabis for medical purposes has not, as opponents argued, led to an increase in its use by teenagers. By contrast, there has been a near tripling of American deaths from heroin overdoses between 2010 and 2013, even though the law and its severe punishments remain unchanged.

This year, between April 19 and 21, the United Nations General Assembly will hold a special session on drugs and the world will have a chance to change course. As we approach that event, we need to ask ourselves if we are on the right policy path. More specifically, how do we deal with what the United Nations Office on Drugs and Crime has called the "unintended consequences" of the policies of the last 50 years, which have helped, among other things, to create a vast, international criminal market in drugs that fuels violence, corruption and instability? Just think of the 16,000 murders in Mexico in 2013, many of which are directly linked to drug trafficking.

Globally, the "war on drugs" has not succeeded. Some estimate that enforcing global prohibition costs at least $100 billion (€90.7 billion) a year, but as many as 300 million people now use drugs worldwide, contributing to a global illicit market with a turnover of $330 billion a year, one of the largest commodity markets in the world.

Prohibition has had little impact on the supply of or demand for drugs. When law enforcement succeeds in one area, drug production simply moves to another region or country, drug trafficking moves to another route and drug users switch to a different drug. Nor has prohibition significantly reduced use. Studies have consistently failed to establish the existence of a link between the harshness of a country's drug laws and its levels of drug use. The widespread criminalization and punishment of people who use drugs, the over-crowded prisons, mean that the war on drugs is, to a significant degree, a war on drug users -- a war on people.

Africa is sadly an example of these problems. The West Africa Commission on Drugs, which my foundation convened, reported last year that the region has now become not only a major transit point between producers in Latin America and consumers in Europe, but an area where consumption is increasing. Drug money, and the criminality associated with it, is fostering corruption and violence. The stability of countries and the region as a whole is under threat.

I believe that drugs have destroyed many lives, but wrong government policies have destroyed many more. We all want to protect our families from the potential harm of drugs. But if our children do develop a drug problem, surely we will want them cared for as patients in need of treatment and not branded as criminals.

February 23, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (4)

Federal district judge in Nebraska calls 10-year mandatory prison sentence for drug offender "absolutely ridiculous"

This local article from the Lincoln Journal Star, headlined "Judge: 10-year sentence is 'absolutely ridiculous'," reports on a notable comments from a federal district judge as he sentenced a seemingly low-level drug offender to a decade in federal prison. Here are the basics from the start and end of the lengthy article:

On a recent Friday in a federal courtroom in Lincoln, a federal judge spoke critically about the 10-year sentence he was on the verge of handing down to the Lincoln man, a nonviolent, recovering meth user. U.S. District Judge John Gerrard's hands were tied.

"The only reason I'm imposing the sentence that I am imposing today is because I have to," he told Leo Guthmiller III on Feb. 12. "That's what Congress mandates." He called Guthmiller, the man at the defense table, Exhibit A for why Congress should pass the Smart on Crime Act. Last June, in a similar case, he called Robyn Hamilton the poster child for it.

In both of the cases, Gerrard, a former Nebraska Supreme Court justice nominated to the federal bench by President Barack Obama in 2011, said the sentence didn't fit the crime. There should be imprisonment, he said, but 10 years in cases like these is ridiculous, draconian even....

[O]n Feb. 12, federal public defender John Vanderslice said Guthmiller got arrested June 20, 2013, at a Lincoln Walmart with a small amount of methamphetamine on him, got accepted into the Lancaster County Drug Court on the state charge and has been clean and sober ever since.

Guthmiller thought drugs were in his past, then, in 2015, he was federally indicted for being part of a conspiracy to distribute methamphetamine in Lincoln back in 2013 for introducing people who were buying and selling it and sometimes getting a cut for it. He pleaded guilty.

"This war on drugs that we are waging in this country with mandatory minimum sentences as applied to a person like Mr. Guthmiller, it's tragic," Vanderslice said at the sentencing. He said it's turned Guthmiller's life upside down.

An emotional Guthmiller apologized for all his past transactions "and everything that's led me to this moment in my life."

"I have worked really hard to turn my life around," he said. "And I'm proud to say that even with all this present stuff facing me that I will continue to do so."

Then, Gerrard handed down his sentence, saying there "should be just punishment, respect for the law. But a 10-year sentence is absolutely ridiculous in a case like this. But there may be another day in court at some point in time." He allowed Guthmiller to report to prison in April.

February 23, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, February 19, 2016

Reviewing Justice Scalia's "Mixed Drug War Record"

This new piece by Jacob Sullum at Forbes provides a useful drug-war lens through which to examine one part of Justice Antonin Scalia's Supreme Court jurisprudential legacy.  Here is a brief excerpt:

Scalia was of two minds when confronted by the government’s efforts to suppress consumption of arbitrarily proscribed intoxicants.  The widely revered and reviled justice, who died on Saturday, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her “Just Say No” campaign.  During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a “drug-free society.”  While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think.

For many years enforcement of drug prohibition has been the main factor undermining the Fourth Amendment’s ban on “unreasonable searches and seizures.”  Scalia participated in that process, joining his colleagues in upholding invasive tactics such as flying low over private property in search of marijuana plants, searching bus passengers’ bags based on consent that was clearly not freely given, and testing the urine of high school students participating in sports or any other extracurricular activities.  But Scalia also resisted drug warriors’ assaults on the Fourth Amendment.

Prior related posts on Justice Scalia and his criminal justice legacy:

February 19, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, February 10, 2016

Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition

As reported in this Washington Post article, headlined "Former federal judge to President Obama: Free the man I sentenced to 55 years in prison," former US District Judge (and now Prof) Paul Cassell has now written directly to the President to urge him to "swiftly commute his sentence." Regular readers likely know a lot about the story of Weldon Angelos, whom I once helped represent as he pursued collateral appeals, and the Post article provides some of the details and context behind his current push for clemency:

Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.

“I write you as the judge who sentenced Weldon Angelos to a 55-year mandatory minimum prison term for non-violent drug offenses,” Cassell wrote to Obama. “It appears to me that Mr. Angelos meets all of the criteria for a commuted sentence.” Cassell was appointed to the bench in 2002 by former President George W. Bush.

In December, Obama granted clemency to 95 drug offenders as part of his continuing effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs. But Angelos, who is behind bars at the Federal Correctional Institution at Mendota, was not on the president’s list. The president has commuted the sentences of 184 federal inmates, more individuals than the past five presidents combined. But sentencing reform advocates say that hundreds — and potentially thousands — of inmates who meet the Obama administration’s criteria for clemency, including Angelos, are still behind bars....

Angelos, the son of a Greek immigrant and the 36-year-old father of three, is one of the nation’s most famous nonviolent drug offenders and a symbol of the severe mandatory sentences. His case has been widely championed, including by Utah’s Republican Sen. Mike Lee, former FBI Director Bill Sessions, the group Families Against Mandatory Minimums and conservative billionaire Charles Koch. “Judge Cassell’s letter articulates well the grave injustice involved in Weldon’s prison sentence,” said Mark Holden, general counsel and senior vice president of Koch Industries,” who has urged attention to the Angelos case.

Like many inmates, Angelos has missed being with his children as they grew up. His 18-year-old son, Anthony, was six when he was sent to prison. His son, Jesse, was 4. His 13-year-old daughter, Meranda, was an infant. In an interview, Angelos said he had hoped the president would grant him clemency in time for him to see Anthony graduate from high school in June.

Angelos was sentenced to 55 years without the possibility of parole after he sold marijuana to a police informant three times in 2002, each time charging $350. Prosecutors alleged that Angelos, the founder of Utah hip-hop label Extravagant, was a gang member and a drug dealer. Angelos denied the allegations and declined a plea bargain offered by prosecutors. Angelos never used or pulled a gun, but the informant later testified in court that he saw one in Angelos’s car during the first buy. He said that during the second buy, Angelos was wearing an ankle holster holding a firearm. Officers later searched his home and found a gun.

The sentence Angelos received as a nonviolent first-time offender fell under a law called 924(c). Federal drug laws require 5- to 30-year mandatory minimum sentences for possessing, brandishing or discharging a gun during a drug-trafficking crime. For each subsequent gun conviction, there is a mandatory sentence of 25 years that must be served consecutively. This is often referred to as “gun stacking,” which is why Angelos received 55 years without parole. He received five years for the gun in the car; 25 years for the second gun charge, having one in an ankle strap; and another 25 years for a third firearms charge, the gun police found in his home. He got one day for the marijuana.

In 2004, when Cassell sentenced Angelos, he wrote a lengthy opinion, comparing Angelos’s sentence (738 months) with the guideline sentences for the kingpin of three major drug trafficking rings that caused three deaths (465 months), a three-time aircraft hijacker (405 months), a second-degree murderer of three victims (235 months) and the rapist of three 10-year-olds (188 months).

Related prior posts providing some Angelos case history:

February 10, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Gun policy and sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015

23992166449_9ff10a5a94As reported previously in this post and now again via this new piece from The Hill, a number of Senators are in the midst of a robust conversation about the merits of and concerns about the Sentencing Reform and Corrections Act (which I have called SRCA 2015 since its introduction last fall).  Of particular note and importance (and as noted in this prior post), Arkansas Senator Tom Cotton seems to be taking a leading role raising concerns about the current version of the SRCA, and I am now pleased and impressed that Senator Cotton has provide a thorough articulation of his concerns through this new Medium commentary titled "The Current Sentencing Reform and Corrections Act is Dangerous for America," and also through this extended speech delivered yesterday on the Senate Floor.

The Medium commentary, which is relatively short, does not do much more than emphasizethe anti-federal-sentencing-reform points already forcefully and repeatedly expressed by the National Association of Assistant U.S. Attorneys and Bill Otis and others who have been consistent opponents of any changes to the current federal sentencing status quo.  But the Senate floor speech is much, much longer and, in my view, in spots much, much more thoughtful in discussing the SRCA and his own perspectives about federal sentencing reform.  I highly recommend all persons following federal sentencing reform to read Senator Cotton's lengthy floor speech in full, and here are some of the (many) passages that has led me to describe it as forceful (and somewhat thoughtful):

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee. There is much debate about the wisdom of this bill.  That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do....

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.  And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim.  It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community....

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings.  Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons.  I look forward to evaluating the new legislative text, and I hope it addresses these problems....

The [US Sentencing] Commission first reduced sentencing guidelines in 2007.  It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result?  46,000 federal convicts will walk from jail early.  Wendell Callahan was one among that 46,000.  There will be many more like him. And while we pray — against all odds — that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions.  But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years — one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided.  The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions.  This experiment threatens to undo the historic drops in crime we have seen over the past 25 years....

The Senate, and the American people, need to consider any change to our sentencing laws with full information.  We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result.  We need to debate sentencing changes with all the data available to us.  We need to do this with eyes wide open.

That is why today — together with Senators Hatch, Sessions, and Perdue — I am introducing the Criminal Consequences of Early Release Act.  This is a simple, but very needed bill.  It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions.  And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.  It will make clear what types of crimes — from drug trafficking to assault to robbery to murder — are being committed by these felons. And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile.  It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.  Full information on the criminal consequences of early release must be published in detail.  Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions....

I want to be clear.  To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record.  It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system.  But it remains true that the better option for them — particularly if they are addicts — would be drug treatment.  Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers.  Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released.  Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill.  Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences.  Let's improve prison conditions and give prisoners a shot at redemption and a better life.  And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences.  But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers.  The president has the constitutional power to remedy unjust sentences.  But you know what power he doesn't have?  The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

There are a number of statements in the parts of this speech quoted above with which I could take serious issue. In particular, Congress always has authority to block any and every formal decision by the US Sentencing Commission, and the crack-guideline reductions of 2010 were essentially mandated by Congress in the Fair Sentencing Act of 2010. Consequenlty, it is not accurate for Senator Cotton to assert that "Congress didn't have a hand in those sentencing reductions" to drug sentences promulgated by the USSC in recent years. More generally, to assert in blanket terms that "drug trafficking is not 'non-violent'," is no better than asserting in blanket terms that "drug trafficking is non-violent." Some federal drug-traffickers in some settings are extremely violent in doing business. But I have not heard of much violence taking place in all the stores now selling a whole lot of marijuana in Colorado and other states, and I surmise that the ability to purchase this drug in a safe environment is one reason marijuana sales seem to keep going up and up in a number of states.

But, critically, even though Senator Cotton sometimes favors rhetoric over reality in this speech, the basic themes and many particulars he stresses are an important and valuable contribution to the broader debate over federal sentencing reforms. In particular, Senator Cotton is 100% right that our national data on the recidivism rates and realities of federal offenders — not only with respect to those who get sentence reductions, but also for the entire released offender population — leave a lot to be desired and raise more questions than answers. (Indeed, as some readers likely know well, the very term "recidivism" is subject to various definitions in various settings.) I could not agree more with Senator Cotton's statement that the "Senate, and the American people, need to consider any change to our sentencing laws with full information." Indeed, I have long thought that many of our worst federal sentencing laws enacted in prior decades — e.g., the 100-1 crack/powder disparity, some of our most severe gun possession mandatory minimums — were passed largely based on misinformation about their reach and likely impact.

In addition, I think Senator Cotton merits praise for urging his colleagues to "improve prison conditions and give prisoners a shot at redemption and a better life," and especially for suggesting "work on a bill to speed the consideration of commutation applications" in order to "help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences." As long-time readers know, many sentencing reform advocates (myself included) have been advocating for Presidents of both parties to make much broader and more constitent use of the "constitutional power of pardon and commutation." I think it is both quite heartening and significant that now the Senate's most vocal opponent of proposed sentencing reforms is sincerely calling for President Obama (and future presidents) to use the clemency power to remedy any and all federal sentences that appear to the President to be "manifestly unjust."

February 10, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Monday, February 08, 2016

"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"

The title of this post is the headline of this notable new Salon article authored by Daniel Denvir.  Here are excerpts:

It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....

Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone.  The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.

The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned.  This has not so much been the case for drug dealers....

And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic.  At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.

It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”

While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”

LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.

Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....

It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....

There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.

February 8, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, February 04, 2016

Detailing shrinking number of states still denying federal benefits to former drug felons

The Marshall Project has this intriguing new piece on the modern reality and reform of collateral consequences headlined "Six States Where Felons Can’t Get Food Stamps: Few holdouts remain, as drug-war-era bans on benefits are lifted."  Here are the details:

For almost two decades, Alabama residents convicted of a drug-related felony were barred for life from receiving food stamps or welfare payments.  Starting this month, the ban will officially be lifted.

Alabama is not the only state that is backing away from the ban, which was established in 1996 under President Bill Clinton’s welfare reform law and blocks only drug offenders from receiving assistance, not any other felons.

Eighteen states have completely abandoned the federal prohibition on drug offenders receiving Supplemental Nutrition Assistance Program (SNAP) benefits, or food stamps.  Twenty-six other states have partly eased those restrictions, often by providing the benefits only if the recipient complies with parole, does not commit a second offense, enrolls in treatment, etc.  At least three more states — Georgia, Nebraska, and Indiana — are now considering similar reforms. Only six states continue to fully enforce the War on Drugs-era ban. ...

States have been somewhat less willing to lift the ban on drug offenders receiving Temporary Assistance to Needy Families (TANF), otherwise known as welfare.  Thirteen states continue to fully prohibit anyone with a drug-related conviction from getting welfare benefits, and 23 others maintain a partial ban.

Unlike food stamps, which are paid for in full by the federal government, welfare is partly funded by the states.  That means it is significantly more expensive for states to expand access to welfare, which may be part of the reason this ban has been slower to fall.

February 4, 2016 in Collateral consequences, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (1)

Wednesday, January 27, 2016

Maine Gov calls for return of death penalty to state for drug dealers and others

This notable recent local article, headlined "Maine should have death penalty for drug dealers, LePage says," reports on some notable recent comments by the chief executive in the Pine Tree state. Here is how the piece starts:

Gov. Paul LePage came out Tuesday in support of reinstating capital punishment in Maine.  After starting his day with an apparent joking reference to using the guillotine to stage public executions of drug traffickers, he ended it by saying he believes in the death penalty for drug traffickers, criminals who invade homes and sexually assault the residents, and people convicted of murder.

“What we ought to do is bring the guillotine back,” LePage said during a morning interview on WVOM radio in Bangor. “We could have public executions.”  The Governor’s Office said the remark was just a joke to illustrate his support for tougher penalties for drug crimes.

On Tuesday night, LePage was asked whether he supported the death penalty, specifically using the guillotine, during a town hall meeting at Husson University in Bangor broadcast by WVII-TV.  “I talk about people dying (from drug overdoses) every day, but no one wants to hear that,” LePage told the audience.  “When I talk about the death penalty everyone wants to protect the drug traffickers. I want to protect the people of Maine.”

The death penalty was abolished in Maine by the Legislature in 1887.  His comments about the guillotine, made just a few weeks after he made national headlines with a remark about drug traffickers coming to Maine and impregnating a young white girl before they leave the state, were picked up by several national media outlets, including CNN and The Washington Post.

“The only time Maine makes the national news is when the governor says something crazy like this,” said Democratic House Majority Leader Jeff McCabe of Skowhegan.  McCabe said such remarks produce a “spectacle,” but do little to solve the issue of ending the drug epidemic.

January 27, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, January 24, 2016

Lots of notable new year marijuana reform developments via Marijuana Law, Policy and Reform

It has been some time since I highlighted here developments in the marijuana reform space, and these recent posts from Marijuana Law, Policy & Reform highlight just some of the reasons why 2016 is already full of marijuana reform stories worth keeping an eye on:

January 24, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Thursday, January 21, 2016

"Why hasn’t President Obama granted clemency to a single Latina inmate?"

The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:

Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation.  Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....

On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime.  In total, I spent 17 years behind bars for a crime committed at age 21.  I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.

But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina.  Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population.  They are three times more likely to go to prison than white women.  And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007.  There’s no shortage of worthy Latina candidates for a presidential clemency.

Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston.  Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.

Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing.  Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years.  And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.

President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing.  One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well.  To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.

The War on Drugs should be called the War on Minorities.  Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children.  Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color.  Brown lives matter, too.

January 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (4)

Monday, January 11, 2016

Lots of notable Atlantic reads on range of criminal justice topics

The folks over at The Atlantic always have a lot of worthy criminal justice (and other) reads, and these recent pieces struck me as especially blogworthy:

January 11, 2016 in Drug Offense Sentencing, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Monday, January 04, 2016

"Mr. Obama’s Trickle of Mercy"

The title of this post is the headline of this recent New York Times editorial.  Here is an excerpt:

After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons — more grants, as the White House wasted no time in pointing out, than the last six presidents combined. But that’s a pitifully low bar, since Mr. Obama’s most recent predecessors all but abandoned the practice.

Mr. Obama knows this is a far deeper problem than can be solved by a few dozen grants.  There are 9,000 applications for commutations that have not been acted on.  The administration solicited applications like these in 2014 as part of a sweeping clemency initiative aimed at federal inmates who have served at least 10 years of a sentence that would be shorter today because the law has changed.  To be eligible, prisoners must also have been convicted of a low­level, nonviolent offense, have no “significant” criminal history, and have behaved while behind bars.

At the time, the initiative seemed a big step toward reversing some of the gravest injustices of the nation’s decades­long drug war, most obviously for the thousands of inmates still serving time for crack cocaine offenses that are punished far less harshly today.

Less than two years later, however, the vast majority of applications remain in limbo.  A coalition of volunteer defense lawyers working alongside the Justice Department has struggled to get basic information on applicants.  The department itself is hopelessly mired in bureaucratic tangles and institutional conflicts of interest.

By the administration’s own estimates, as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month.  So why is Mr. Obama continuing to make grants in the single or double digits?

One reason is the Justice Department; the clear solution is to run the process directly out of the White House.  The president may also be wary of undercutting a package of bipartisan sentencing reforms making its way through Congress.  But that legislation is far from a done deal, and may be on even shakier ground now that one of the leading Republican presidential candidates, Senator Ted Cruz, rejects reforms he previously supported.

Regardless of what Congress does, the presidential power of mercy is explicit in the Constitution, it is virtually unlimited, and presidents once used it far more freely to correct injustices. It is a “tool of public morality,” as one former federal prosecutor put it.  If Mr. Obama truly wants to reinvigorate this moribund process, he has a year left to do it. The job requires only two things: a pen and the political will.  There is no question that Mr. Obama has the pen.

A few recent related posts:

January 4, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 27, 2015

"Prisons as addiction treatment centers?"

The question in the title of this post is the headline of this local article from the Buckeye State.  Here are excerpts:

With at least four of five inmates struggling with addiction, Ohio's prisons are beginning to look more like drug treatment centers.

Prisoners participate in group counseling sessions, visit with prison "alumni" who have remained sober after leaving incarceration and enroll in Medicaid to help pay for counseling and medication-assisted treatment after they are released.  Money from the state budget, $27.4 million through June 30, is paying for more counselors to treat addiction inside Ohio's prisons, said Tracy Plouck, director of the Ohio Department of Mental Health and Addiction Services.

The concept is relatively simple: people addicted to drugs commit crimes like possessing drugs, selling drugs, stealing money or property to buy drugs and hurting others because they are under the influence of drugs. Take away the compulsion for drugs and alcohol, and these lower-level offenders might not return to prison, Ohio Department of Rehabilitation and Correction director Gary Mohr said. "What we’re attempting to do is reduce crime victims out in Ohio," Mohr said.

Before changes in July, Ohio prisons were releasing 8,000 to 9,000 people with serious addiction problems each year without treating half of them, Mohr said. Staying for less than six months?  You weren't eligible.  Too many inmates on the waiting list?  There wasn't not enough staff to help.  Now, people who will be released in three months can start counseling in prison and have their medical records sent to a halfway house when they leave.  By signing released prisoners up for Medicaid, the insurance program might pay for medication-assisted treatment and counseling — a combination considered by many physicians to be the gold standard of treatment.

"I can tell you right now we are going to be treating thousands of people that we weren’t treating before," Mohr said. When an inmate enters prison, he goes to a short-term reception center, and takes a test designed to spot mental health and addiction concerns.  From there, he is sent to the prison where he will serve out his term. If the inmate isn't a violent offender, he might participate in a therapeutic community, groups of 70 to 180 inmates who live together, attend group counseling sessions and commit to good behavior while in prison, or a reintegration unit, where inmates work eight to 10 hours a day to simulate life outside prison.

Plouck wants to triple the number of inmates in therapeutic communities by mid 2017 by expanding the number of communities from four to eight. Madison Correctional Institution and Noble Correctional Institution are next on the list.  In 2014, 569 inmates participated; by 2017, prison officials hope to have 1,500 enrolled.

Mohr also wants to have every prison enrolling eligible inmates in Medicaid by the end of 2016. Currently, 10 of 27 prisons are enrolling inmates in the low-income insurance program expanded by Gov. John Kasich.  About 2,400 people have signed up since the program began in earnest this fall, Mohr said.  Medicaid can pay for counseling and medication-assisted treatment after prisoners leave incarceration....

A smooth transition from treatment in prison to treatment outside of prison is critical. It's easy to remain sober in prison with no access to drugs or alcohol. The challenge comes when they are released back to homes where relatives or friends might still be using drugs or alcohol, Plouck said.

December 27, 2015 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (7)

Wednesday, December 09, 2015

"Decriminalizing Drugs: When Treatment Replaces Prison"

The title of this post is the headline of this lengthy New York Times commentary piece authored by Tina Rosenberg, which gives extended attention to Portugal's experience with drug decriminalization. Here are extended excerpts:

If one of my children were a drug addict, what would I want for him?

I would want what any parent would: for his addiction to be treated as a health problem, not a criminal matter, and for him to have every kind of help possible to get him off drugs. Until that happened, I would want him to be able to manage his addiction and live a normal life by taking methadone or another substitute opioid. And until that happened, for him to stay as safe as possible from overdosing, developing H.I.V., or going to prison, which would irrevocably alter the course of his post-addiction life.

What’s significant about the question is not how I would answer, but the probability that I might be asked it at all. Because I am white and middle class, society would view my addict child as a sick person who needed help. If I were African-American and poor, he would most likely be seen as a criminal to be locked up. And no one would be interested in what I wanted, or what was best for him....

New England and Appalachia have been hit particularly hard by the heroin and opioid epidemic in the United States, but all across the country, policies are emerging that treat drugs as a health problem instead of a crime. Conservative politicians who once called needle exchange the devil’s work are now establishing them in their cities. Police officers now carry naloxone, a drug that instantly reverses overdoses, and are saving lives on a daily basis. Cities all over the country are copying Seattle’s Law Enforcement Assisted Diversion program, in which police officers put low-level drug offenders into treatment and social services instead of jail. It is hard to imagine Congress decriminalizing drugs, but easy to imagine that soon, any debate at the national level may be irrelevant.

Where will that take us? We can look at what happened in various countries that have decriminalized drugs. Portugal has gone the furthest. It decriminalized the personal use of all drugs (dealing and trafficking are still crimes and use remains illegal) in 2001. Its program is the most comprehensive and the best-studied. At the turn of the century, Portugal was drowning in heroin and had the worst H.I.V. rates among injecting drug users in Europe. The country had responded with harsh drug laws, which had not helped. Indeed, the laws drove many users underground.

On July 1, 2001, Portugal reversed course, decriminalizing possession of less than 10 days’ supply of any drug. That’s not legalization. But the penalties have been made administrative, not criminal. When the police catch people using or possessing drugs, the drug is seized. Within 72 hours, the user meets with what is called a dissuasion commission. The commission has social workers and psychologists who use the police report and assess the drug user and his needs. Then the user comes before a dissuasion panel; Lisbon’s, for example, has a sociologist, a lawyer and a psychologist.

The panel can simply warn a user, or send him to appropriate social or health services — including drug treatment if the user is an addict.  Nuno Capaz, the sociologist on Lisbon’s panel, said that users were punished only if they refused to go or they were repeat offenders.  The punishment can be a fine, community service, or supervision by a local agency.

Decriminalization doesn’t work alone. “You need to invest heavily in public health response,” said Niamh Eastwood, executive director of Release, a British organization. “The success of Portugal is not just a model of law reform, but also significant harm reduction and a public health response. The whole package should be deployed.” “Decriminalization is easy,” said Capaz. “You write down that if people are caught doing illegal things, the sanctions are administrative and not criminal. The hard part is making treatment available. It works for us because it works with our health care system — drug users who want treatment can get it for free.”

As it changed its laws, Portugal set up prevention campaigns, harm-reduction measures such as needle exchange that make drug use safer, and treatment services. Although drug-free treatment is available, Portugal relies heavily on methadone and other opioid substitution therapy to gradually wean users away from drugs. Hyper-controversial when it first started, Portugal’s program is now widely accepted.  When global recession hit in 2008, the country’s health, housing and employment programs were severely cut. That may have affected its drug policies, but when drug programs themselves were cut — mostly outside of Lisbon — the losses were less than in other programs, Capaz said. Their success largely protected them, and politicians knew that cutting treatment or prevention services would only cost more later.

With those caveats, here’s what’s happened in Portugal:

Overdose deaths — down by 72 percent....

Spread of H.I.V. — down by 94 percent....

Drug crime and imprisonment — down, by definition....

Drug use — mixed....

Portugal is far from alone. At least 25 countries have decriminalized some drugs, mostly cannabis. A few countries in Europe did so in the 1970s — or had never criminalized drugs at all. But in the last 10 years more have joined in Europe and Latin America, and other countries that have not decriminalized have nevertheless softened their policies to emphasize public health and harm reduction.... The tragic exception to the trend is Russia, where even methadone is still illegal. Russia’s cruelty towards drug users is the main reason the country’s epidemic incidence of H.I.V. has doubled in the last five years....

The most surprising endorsement of decriminalization came last month from the United Nations Office on Drugs and Crime, which had always taken a hard-line approach to drugs. At a harm-reduction conference in Malaysia, the agency released a paper that began: “This document clarifies the position of UNODC to inform country responses to promote a health and human rights based approach to drug policy.” It lays out the case for decriminalization and harm reduction. (Branson put the paper on his website.)

As soon as the paper came out, the agency drew back. The author was supposed to speak at the conference, but didn’t. A spokesperson for the agency said the paper was “neither a final nor a formal document….and cannot be read as a statement of UNODC policy.” It’s not clear why the agency retreated, but in the past, the United States has pressured international organizations to retract documents that propose a softer line.

Other countries that have decriminalized have largely echoed Portugal’s results, seeing big improvements in avoiding deaths, disease and imprisonment, but very little effect on usage. Two recent British studies examined the effects of drug policy on drug use in different countries. The nongovernmental organization Release looked at decriminalization’s effects in 21 countries, and found no statistically significant increase in levels of drug consumption. Britain’s Home Office published a study last year of drug policies and their effects in countries around the world. “We did not in our fact-finding observe any obvious relationship between the toughness of a country’s enforcement against drug possession, and levels of drug use in that country,” the report concluded.

For all its advantages, decriminalization fails to alleviate many harms that come from drugs — its lack of impact on usage is one example. “Decriminalization doesn’t deal with the supply-side issues,” said Eastwood. “It doesn’t really undermine all the negative consequences from the illicit market. It doesn’t reduce violence. It doesn’t affect drug purity.” Indeed, the inconsistent purity of heroin is a big contributor to overdose deaths. In short, decriminalization is not a good solution to the drug problem. It’s just a better solution than the one we’ve got. 

December 9, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (1)

Sunday, December 06, 2015

Latest USSC retroctivity data suggest prison savings over $1.4 billion from drugs-2 guideline amendment retroactivity

I just noticed on the US Sentencing Commission's website this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated December 2015, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782 [the so-called drugs -2 amendment]. The data in this report reflects all motions decided through September 30, 2015 and for which court documentation was received, coded, and edited at the Commission by November 30, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, well over 20,000 federal prisoners have had their federal drug prison sentences reduced by an average of just about two years.

So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers over $1.4 billion dollars. As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

December 6, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, December 03, 2015

"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir.  Here are excerpts: 

The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed.  The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....

There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely.  David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements.  And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”

 851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence.  What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...

Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”

There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions.  If prosecutors so decided, they would trigger life without parole upon conviction.

On March 5, 2013, prosecutors offered Kupa a plea deal.  The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months.  With good time credits, Kupa could serve seven years and ten months, Gleeson wrote.  But Kupa had just one day to think the agreement over, and he didn’t accept it.  And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.

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

Fourth Circuit to consider en banc whether it can consider new claims from federal prisoner with wrong old LWOP sentence in Surratt

In this post a few months ago, I noted the lengthy split Fourth Circuit panel ruling in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here), in which a majority of the panel decided it could not consider a challenge to a wrongful LWOP sentence for a federal drug defendant.  As the majority put it: "We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence.  However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below."

Now, thanks to a helpful reader, I have learned that yesterday the full Fourth Circuit decided via this order to now hear the Surratt case en banc.   For anyone interested in federal habeas law, this now become a must-watch case. 

December 3, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Federal statutory sentencing reform not going to happen until 2016 ... if at all

This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:

It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.

Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....

Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....

While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.

Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"

While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."

Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."

Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”

I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.

December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, December 02, 2015

Two very different (and very depressing) stories that are distinct imprints of drug war carnage

31-moma_cotc_7.01.02schneiderwarisnothealthyThe famous image uploaded with this post has a message that has stuck with me since I first saw it many decades ago.  And that message, highlighting the unhealthy carnage that always results from war, quickly came to mind as I notices these two distinct must-read stories this morning.  Here are the headlines/links and key paragraphs from both stories:

"Leaked Documents Reveal Dothan Police Department Planted Drugs on Young Black Men For Years, District Attorney Doug Valeska Complicit":

The Alabama Justice Project has obtained documents that reveal a Dothan Police Department’s Internal Affairs investigation was covered up by the district attorney. A group of up to a dozen police officers on a specialized narcotics team were found to have planted drugs and weapons on young black men for years.  They were supervised at the time by Lt. Steve Parrish, current Dothan Police Chief, and Sgt. Andy Hughes, current Asst. Director of Homeland Security for the State of Alabama.  All of the officers reportedly were members of a Neoconfederate organization that the Southern Poverty Law Center labels “racial extremists.”  The group has advocated for blacks to return to Africa, published that the civil rights movement is really a Jewish conspiracy, and that blacks have lower IQ’s.  Both Parrish and Hughes held leadership positions in the group and are pictured above holding a confederate battle flag at one of the club’s secret meetings.

The documents shared reveal that the internal affairs investigation was covered up to protect the aforementioned officers’ law enforcement careers and keep them from being criminally prosecuted.  Several long term Dothan law enforcement officers, all part of an original group that initiated the investigation, believe the public has a right to know that the Dothan Police Department, and District Attorney Doug Valeska, targeted young black men by planting drugs and weapons on them over a decade.  Most of the young men were prosecuted, many sentenced to prison, and some are still in prison. Many of the officers involved were subsequently promoted and are in leadership positions in law enforcement. They hope the mood of the country is one that demands action and that the US Department of Justice will intervene.

"How Big Pharma Gave America Its Heroin Problem: OxyContin, designed for cancer pain relief, became the drug prescribed for back and tooth aches":

As addiction specialists look back on the current heroin addiction crisis — which the U.S. Center for Disease Control and Prevention calls the "worst drug overdose epidemic in [US] history" — most agree that the whole operation started out as the sort of marketing scheme Don Draper might have dreamed up. "[The marketing effort for opioid sales] was a promotional campaign unlike we have ever really seen," says Dr. Andrew Kolodny, the chief medical officer for the Phoenix House treatment centers and co-founder of Physicians for Responsible Opioid Prescribing. "Drug reps were going to family care doctors, and insisting that OxyContin had no real risks — only benefits. What they were selling was the idea that pain was a disease, and not a symptom."...

What followed was not all that surprising. Many grew addicted to the opioids, and when the prescriptions ran out, they turned to heroin because of its availability and relatively low cost. The Mexican drug cartels saw this trend and promptly began growing their opium plants, which they consciously made purer and less expensive.  And those cartels targeted the suburbs, where those introductory OxyContin prescriptions were being filled — and where the money was.

According to the National Institute on Drug Abuse, some 2,000 people died in 2001 from heroin overdose in the U.S. By 2013, that number had climbed to about 8,000. Coinciding with that rise: the number of opioid deaths caused by prescription drugs like OxyContin.  About 6,000 deaths from opioid prescription drug overdose in 2001 spiked to roughly 15,000 by 2013.  Over two million Americans are currently addicted to opioids, according to the National Survey on Drug Use and Health, and 467,000 are addicted to heroin.  What makes those numbers even more startling: Four out of five heroin users reportedly started out on opioids.

The issues and problems discussed in both theses stories are, obviously, about a whole lot more than just the impact of criminal prohibition and intense criminal prosecutions of persons involved with certain controlled substances. Nevertheless, stories like these remind me that the long-run "war on drugs," like so many other wars, has produced an array of unexpected consequences and collateral damages that must should not be overlooked whether we consider whether and how to continue to use massive criminal justice systems to deal with drug use and abuse.

December 2, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Friday, November 27, 2015

Spotlighting why ending the drug war could make a big dent in mass incarceration

This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration.  Here is how it starts (with links from the source):

Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons.  But some researchers have pushed back against this notion in recent years.  They point out that drug offenders account for only about 1 in 5 state and federal inmates.  The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent.  Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.

But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison.  Rothwell calls this "stock and flow."

He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison.  The reason for the difference?  Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals.  So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.

"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes.  "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."

Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes.  Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society.  A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.

November 27, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, November 23, 2015

US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines

Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues.  The latest Judge Bennett opus arrived today via US  v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below).  As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:

Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines.  The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum.  That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences.  In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.  I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.

So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress.  For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power.  Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum.  Feauto is not such a defendant.

I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing.  As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782.  Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.

Download Feauto.Final Opinion.final.112315

November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

NY Times editorial: "Cut Sentences for Low­-Level Drug Crimes"

This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:

Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.

The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts.  That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.

The new sentencing­-reform bills now moving through the Senate and House would help reduce some of the longest mandatory­-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.

But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug­-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections.  Less than 14 percent were sentenced for using or threatening to use violence, or directing its use.  And only 14 percent were sentenced for having a high-­level or leadership role in a drug operation, the study found....

A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.

One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days.  Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.

Some recent related posts:

November 23, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, November 18, 2015

"Some Women Charged Under Tennessee’s Hated Fetal Assault Law Say It’s Not So Bad"

The title of this post is the headline of this interesting new Nashville Public Radio piece (found by my great research assistant) that provides interesting perspectives on a controversial Tennessee criminal law responding to modern drug abuse concerns.  Here are excerpts:

Tennessee has attracted international attention for making it a crime to give birth to a drug-dependent baby. This means women addicted to pain pills or heroin can be charged with assault to a fetus.  After less than two years in effect, the controversial law must be renewed, or it will expire.  While the measure has drawn worldwide disdain from women's health and civil liberty advocates, some of the women who’ve been charged say the threat of jail-time was a wake-up call.

“If I didn’t go through what I went through, I’d probably be down that same road right now," says 26-year-old mother Kim Walker of Johnson City. "But now I’m a totally different person. And I’m on the good road, not the bad road.”  Last year, Walker went into labor at home....  "One push and he was out," she says. “My husband delivered him. Didn’t know he was drug exposed until we got to the hospital," she says. "When we got to the hospital, they took him straight from my hospital room. I didn’t get to see him, didn’t get to hold him, nothing.”

He spent 28 days in the neonatal intensive care unit, withdrawing from the painkillers Walker was taking illegally. Walker had to take a drug test, which she failed. Then she was charged with assault.  But like most women, she chose treatment in order to avoid conviction. Rehab was a rocky road.  There’s been a relapse along the way. But in late October, Walker gave birth to another son — Jack — this time, drug-free.

The idea for Tennessee’s fetal assault law didn’t originate from doctors, nurses or social workers.  It came from law enforcement and legislators.  In fact, the medical community lined up in resistance, saying punishment is no way to treat addiction — especially when young mothers are singled out.

Lisa Tipton falls somewhere in the middle. “I don’t feel the law is perfect," she says. "I don’t feel the law is necessarily the solution...but we were absolutely bombarded.” Tipton runs a non-profit treatment center called Families Free in Johnson City. This part of Northeast Tennessee is the epicenter of the state's — and even the country's — problem with neonatal abstinence syndrome....

Tipton recognizes that Tennessee’s law has a bad rap among women’s health advocates and civil liberty groups.  But she says she’s not hearing great alternatives from the naysayers.  “I would really invite them to go in our area, into the trailer parks where they may be living with several family members who also use drugs and sometimes abuse them, and their children as well. To go into the jails and talk to the women whose lives have been destroyed by drugs and whose children are being raised by somebody else," Tipton says. "Help come up with some very real-life and real-world solutions that are going to change the lives of these women.”

It isn't clear the fetal assault law is doing what it was supposed to do.  In the Tri-Cities, more women have been prosecuted with this misdemeanor than anywhere else in the state.  Sullivan County District Attorney Barry Staubus, who pushed for the law in the first place, has charged more than 20 women this year.  And yet the mountainous region is still home to the largest number of babies being born needing to detox.

State Rep. Terri Lynn Weaver, R-Livingston, sponsored the statute.  She says it needs more time and should be renewed.  “I’m just going to stand my ground on the fact that I believe wholeheartedly this bill does help and does help these women that are in situations that never would have gotten the help they needed,” she says.

Some women say they were too scared to get prenatal care for fear of going to jail. Even getting that medical help is tricky.  Some OBGYNs prefer drug treatment to come first. And only a handful of treatment centers in the state even accept pregnant women and their added complexities.

"I’m not really sure what I feel about the law right now. I kinda of have mixed emotions about it,” says Sabrina Sawyer of Kingsport.  Her nine-month-old son was born with drug-dependency and had to spend several days in the NICU. He's happy and healthy now, which brings to light another important point from critics: It's unclear whether there are any long-term health effects from NAS.

Sawyer, who has two other young children, says she didn't know about Tennessee's fetal assault law until a caseworker walked into her hospital room.  “I was terrified. I had never been in any kind of trouble," she says. "It sent me through an emotional mess for a while.” Sawyer was charged with assault but chose to get treatment and avoid prosecution.  While torn about the effectiveness of the law, she also admits she'd likely still be using if going to jail hadn't been a possibility.

November 18, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Tuesday, November 17, 2015

Terrific original reporting by The Crime Report on challenging extreme policing bordering on entrapment

Regular readers know I am a big fan of all the criminal justice reporting work done at The Crime Report (TCR), and a new two-part series authored by Adam Wisnieski at TCR showcases why.  In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena:

Here is an excerpt from the first of these two important pieces:

A TCR investigation found 126 motions to dismiss a case on the grounds of “outrageous government conduct” filed during an 18-month period between 2014 and August 2015. In those 126 cases, only seven were initially successful.  Three of those were overturned on appeal, and an appeal on the fourth is still pending — though it is expected to be denied.

In the rare occurrences where a claim of “outrageous government conduct” is successful, something profound happens: police behavior changes. In one instance this year, the motion’s success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution. (More on this below.)

Nevertheless, the motion’s lack of success raises troubling questions for the future of American law enforcement.  Legal scholars and critical judges say the near-overwhelming failure of courts to rule aggressive police behavior is “outrageous” when such motions arise has created a climate in which such behavior is likely to increase — while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans’ constitutionally enshrined right to due process.

November 17, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, November 13, 2015

"Alternative Courts and Drug Treatment: Finding a Rehabilitative Solution for Addicts in a Retributive System"

The title of this post is the title of this new paper by Molly Webster now available via SSRN. Here is the abstract:

Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.

Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s Opportunity Probation with Enforcement represent efforts to address treatment within the court system. This Note argues that certain policies are more likely to benefit drug-addicted defendants than others, including procedural justice, predictable sanctions, and an increased focus on treatment. It also posits that qualitative studies measuring long-term success of drug treatment programs should be commissioned to ensure that drug courts utilize the most effective treatment policies that promote rehabilitative ideals.

November 13, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Thursday, November 12, 2015

"Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"

The title of this post is the title of this notable new data analysis from The Urban Institute.  Here are snippets from the start and end of the short and reader-friendly report:

Almost half (45 percent) of the 95,305 individuals in federal prison for drug offenses are in the lowest two criminal history categories, indicating minimal prior convictions and a low risk of recidivism.2 In fact, over one-quarter (26 percent) have no prior criminal history.

Further, over three-quarters of all individuals in federal prison for drug offenses have no serious history of violence before the current offense. More than half have no violent history, and nearly a quarter have minor histories of violence, such as a simple assault and other crimes that do not typically lead to serious injury....

At the end of the FY 2014, individuals serving drug sentences accounted for 49 percent of the total federal prison population. Though recent policy changes have helped reverse upward trends in population size, the Urban Institute’s Federal Prison Population Forecaster shows that continuing population declines will require significantly shorter lengths of stay for drug offenses.  Congressional leaders are considering legislative action that would reduce some mandatory minimum penalties and grant judges greater discretion to sentence individuals to shorter prison stays for drug offenses.  While the exact impact of these bills is unknown, lasting reductions in the size of the federal prison population will only come from big cuts in lengths of stay for drug offenses.  The Task Force will be considering such reforms as part of its deliberations and expects to build on the efforts under way in Congress.

November 12, 2015 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Tuesday, November 10, 2015

Urging AG Lynch to ensure DOJ policies on § 851 enhancements are followed consistently

I was pleased over this weekend to be part of an effort spearheaded by Prof Kate Stith to write to Attorney General Loretta Lynch to express concerns about federal prosecutors' charging practices in drug cases.  The short letter sent yesterday to AG Lynch on this matter, which can be downloaded below, gets started and ends as follows:

We write to urge you to issue renewed guidance to all U.S. Attorneys to reiterate and enhance compliance with former Attorney General Eric Holder’s September 2014 Memorandum (“Holder Memo”) instructing U.S. Attorneys not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty.  Recent statements by Steven H. Cook, head of the National Association of Assistant United States Attorneys (NAAUSA), as well as field research being conducted by students at Yale Law School, suggest that at least some federal prosecutors are not consistently complying with this policy.  This creates prosecutor­-driven disparities that are plainly unwarranted....

[T]here is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial.  Last week, the Washington Post reported that Steven Cook of NAAUSA “said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations.  The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office.  Defense attorneys ‘understand that this tool is still in our pocket.’”

Though the study is still ongoing, preliminary inquiries and data analysis by students at Yale Law School likewise reveal inconsistent application of the Holder Memos.  Moreover, prosecutors in many districts continue to wield the explicit or implicit threat of § 851 enhancements to induce defendants to plead guilty.  In numerous districts across the country, it is common knowledge that a prosecutor will almost certainly file an enhancement if a defendant elects to go to trial.  Such practices contravene the spirit and letter of the Holder Memos.

We urge you to issue renewed guidance to all U.S. Attorneys in order to ensure compliance with and consistent application of the August 2013 and September 2014 Holder Memos. Additionally, in order to foster and facilitate consistent application of federal sentencing laws nationwide, we recommend that you (1) include these policies in the U.S. Attorneys’ Manual, and (2) require U.S. Attorneys to report when they file § 851 enhancements, and their reasons for doing so pursuant to the Holder Memos.

Download Letter to Hon. Loretta E. Lynch from Professor Kate Stith_Douglas Berman_and Mark Osler

November 10, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, November 08, 2015

"How Doctors Helped Drive the Addiction Crisis"

The title of this post is the headline of this extended New York Times op-ed authored by Richard Friedman, which reinforces my long-standing view that drug use/abuse and related social ills are most properly considered and addressed as public health concerns rather than criminal justice issues.  Here are excerpts:

There has been an alarming and steady increase in the mortality rate of middle-­aged white Americans since 1999, according to a study published last week.  This increase — half a percent annually — contrasts starkly with decreasing death rates in all other age and ethnic groups and with middle­-aged people in other developed countries.

So what is killing middle­-aged white Americans?  Much of the excess death is attributable to suicide and drug and alcohol poisonings.  Opioid painkillers like OxyContin prescribed by physicians contribute significantly to these drug overdoses.

Thus, it seems that an opioid overdose epidemic is at the heart of this rise in white middle­-age mortality.... Driving this opioid epidemic, in large part, is a disturbing change in the attitude within the medical profession about the use of these drugs to treat pain....

[S]tarting in the 1990s, there has been a vast expansion in the long­term use of opioid painkillers to treat chronic nonmalignant medical conditions, like low­back pain, sciatica and various musculoskeletal problems.  To no small degree, this change in clinical practice was encouraged through aggressive marketing by drug companies that made new and powerful opioids, like OxyContin, an extended­release form of oxycodone that was approved for use in 1995....

The consequences of this epidemic have been staggering.  Opioids are reported in 39 percent of all emergency room visits for nonmedical drug use.  They are highly addictive and can produce significant depressive and anxiety states. And the annual direct health care costs of opioid users has been estimated to be more than eight times that of nonusers.

But most surprising — and disturbing — of all is that there is actually very weak evidence that opioids are safe or effective for the long­term treatment of nonmalignant pain. So how did they become so popular for these uses?  A large review article conducted between 1983 and 2012 found that only 25 of these were randomized controlled trials and only one study lasted three months or longer.  The review concluded that there was little good evidence to support the safety or efficacy of long­term opioid therapy for nonmalignant pain....

What is really needed is a sea change within the medical profession itself.  We should be educating and training our medical students and residents about the risks and limited benefits of opioids in treating pain.... It is physicians who, in large part, unleashed the current opioid epidemic with their promiscuous use of these drugs; we have a large responsibility to end it.

This commentary fittingly highlights that, in modern times, doctors and Big Pharma are the most significant (and potentially dangerous) drug dealers for most Americans.  It also informs my own disinclination to defer completely to doctors and Big Pharma when they express concern about the potential harms of marijuana reform or to trust politicians when they suggest doctors and Big Pharma should guide us through modern marijuana reform debates.  When it comes to pain management and the developments of safe drugs to treat chronic pain, doctors and Big Pharma have a track record in recent decades that should prompt much more suspicion than confidence.

Some prior related posts:

November 8, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2)

Saturday, November 07, 2015

Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade

I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000.  I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.

I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity).  I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.     

November 7, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

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

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

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

Wednesday, November 04, 2015

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

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

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

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

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

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

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

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

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

Tuesday, November 03, 2015

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

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

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

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

So bye, bye, American Pot Prohibition

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

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

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

Monday, November 02, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 01, 2015

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

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

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

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

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

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

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

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

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

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

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

Friday, October 23, 2015

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

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

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

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

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

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

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

Tuesday, October 20, 2015

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

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

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

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

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

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

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

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

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

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

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

Some previous related posts:

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

Monday, October 19, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, October 16, 2015

Notable new polling on distinct sentencing/punishment issues

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

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

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

Thursday, October 15, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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