Tuesday, June 07, 2016

Minnesota survey suggests marijuana reform can help with opioid issues ... and other recent highlights from Marijuana Law, Policy & Reform

Anyone interested and concerned about the so-called "war on drugs" or the relationship between criminal justice reform and public health has to be concerned these days with the national opioid problems.  And one of many reasons I am a supporter of state experiements with various forms of marijuana reform is my hope that such reforms might be one of many ways to try to address opioid problems.  Consequently, I was very intrigued to see the details of a lengthy report on a survey done by the Minnesota Department of Health (here in full) showing that a number of health care practitioners reported that some medical patients were able to decrease their use of prescription opioids.   I report on this report in the first of the links below providing recent highlights from my Marijuana Law, Policy & Reform blog: 

June 7, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Friday, June 03, 2016

Prez Obama commutes 42 more federal prison sentences

Chart_060316_commutations[1]As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:

Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.

Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.

White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.

Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:

Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.

To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....

Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.

June 3, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, May 31, 2016

"Marijuana Enforcement Disparities In California: A Racial Injustice"

The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:

Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction.  Subsequently, misdemeanor marijuana arrests plummeted by 86 percent.  Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher.  This can be a substantial burden for young and low-income people.  According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....

Infraction data are hard to come by in California.  The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys.  In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.

These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough.  There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys.  While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.

Cross-posted at Marijuana Law, Policy & Reform

May 31, 2016 in Data on sentencing, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, May 25, 2016

"Many serving sentences for marijuana offenses deserve clemency"

The title of this post is the headline of this recent San Francisco Chronicle commentary authored by Alex Contreras, a former federal inmate serving a 40-year sentence for drug and gun charges who received clemency from President Obama in December 2015.  Here is the text:

More than 10,000 clemency applicants wake up every day in a federal prison, awaiting an answer from President Obama on whether their lengthy prison sentence will come to an end. Most of them will be crushed when they are eventually denied.  There are a few, however, who will realize the unlikely and overwhelming joy of finally being released. I was one of those rare few whose name was on the list of Obama’s recent clemency grants.  And while I was excited to finally be going home — and extremely grateful to the president — I was also perplexed by those who weren’t on the list.

In speaking about criminal justice reform, Obama has highlighted the injustice of incarcerating marijuana offenders for “long stretches,” and has described marijuana as being “less harmful than alcohol” and a “vice,” not unlike cigarette smoking. He also instructed his Justice Department to not prosecute medical or recreational marijuana sellers who are operating under state law.  But his pool of clemency recipients does not reflect these views.

Out of the 306 clemency grants, less than 3 percent were marijuana offenders, and not one of them was a medical marijuana provider, despite being the most deserving given that they were following state law and the Obama administration is no longer prosecuting them. Some of them are even serving decades in prison.

One such inmate is Ricardo Montes, a Latino serving a harsh mandatory 20-year sentence for operating a medical marijuana dispensary in Modesto under California law.  Montes and his co-defendant received the longest sentences ever doled out to any medical marijuana provider, because — during the aggressive George W. Bush administration — they were charged under a fearsome mandatory minimum statue designed for drug kingpins and dangerous cartels.

Individuals like Montes are even more deserving of clemency than I was.  Yet I fear that men such as Montes will be left to serve the remainder of their lengthy prison terms, while others reap the rewards of the change in the legal landscape of our nation’s marijuana policies. I hope that Obama’s remaining clemency grants will reflect his sensible views regarding marijuana, ensuring that our criminal justice system “keeps its basic promise of equal treatment for all.”

May 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, May 22, 2016

A bunch of timely and notable new Quick Facts from the US Sentencing Commission

The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site.  Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences.  (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:

May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

Saturday, May 21, 2016

DAG Yates spotlights in commencement speech role of Georgia School of Law in clemency achievement

Today, Deputy Attorney General Sally Yates returned to her alma mater, the University of Georgia School of Law, to deliver this Commencement address. Like all good Commencement addresses, the whole piece is a lovely read. But sentencing fans should be especially interested in these closing comments:

I’d like to close by telling you about a recent intersection between the work of some students graduating here today and my work in Washington.  As some of you may know, the Obama Administration has embarked on a clemency initiative designed to address the disproportionately long sentences given to lower-level, non-violent drug offenders who were sentenced under outdated drug laws.  As Deputy Attorney General, I am charged with making a recommendation to President Obama on each petition. One such recent clemency petition was prepared by two of today’s graduates. These students participated in the representation of a man named Steven Boyd.  In 1998, Mr. Boyd was convicted of selling crack and sentenced to life in prison. He had absolutely no history of violence and other than a few small time drug deals, no other criminal history. Yet the harsh mandatory minimum statutes in effect at the time mandated a life sentence.  That’s life with no possibility of parole. The students prepared Mr. Boyd’s petition for clemency and submitted it to the Justice Department.  That petition made its way to my desk and then on to the White House. And just three weeks ago, the president granted Mr. Boyd’s clemency petition. Mr. Boyd served 18 years and paid his debt to society. As a result of your classmates’ hard work and their commitment to their duty as lawyers, Mr. Boyd will be a free man. Your classmates unlocked justice for Steven Boyd.

Each and every one of you has both the capacity and the obligation, in the words of Attorney General Kennedy, to breathe meaning and force into the pursuit of justice.  I hope that you will seize opportunities to right wrongs large and small, that you will stand up for the voiceless and that you will uphold the promise of our country. I hope that you will use the key that you are about to receive to unlock justice.

May 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, May 19, 2016

Major sentencing reform becomes reality in Maryland

S-l300One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:

Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.

Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.

The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety.  By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.

The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."

But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....

Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."

Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.

The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.

Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.

Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.

Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....

Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.

Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.

Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.

Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.

May 19, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Tuesday, May 17, 2016

Noting that different prosecutors have notably different opinions on the SRCA

ImagesThis lengthy new Daily Signal article, headlined "Is It Time for Criminal Justice Reform?  2 Law Enforcement Groups Are at Odds," details that the heads of the National District Attorneys Association and of the National Association of Assistant U.S. Attorneys have taken different positions on the leading statutory sentencing reform proposal in Congress. I recommend the piece in full, and here are excerpts:

While the unusual coalition of President Barack Obama and conservative groups hold out hope for the chance at what they call the most meaningful reform to criminal sentencing laws in a generation, frontline law enforcement officials are debating what the changes would mean for their communities.

Steven Cook, whose organization represents more than 5,500 assistant United States attorneys, believes Congress’ attempts to reduce prison sentences for certain low-level offenders will “substantially harm” law enforcement’s ability to “dismantle and disrupt drug trafficking organizations.”

William Fitzpatrick, the president of the official body representing state-level district attorneys across the U.S., views the issue differently, recently writing to congressional leaders that a Senate plan to reduce sentences for drug crimes allows “lower level offenders a chance for redemption.”

Cook and Fitzpatrick are two veteran law enforcement officials with vastly different jobs, but they have outsized roles in a debate over criminal justice reform with high stakes for the people they represent — not to mention the thousands of offenders who could benefit from changes to sentencing laws.

Fitzpatrick made headlines late last month when he authored a letter — on behalf of the National District Attorneys Association — to Senate leaders Mitch McConnell, R-Ky., and Harry Reid, D-Nev., expressing support for compromise legislation meant to reduce mandatory minimum sentences for low-level drug offenders. That endorsement has encouraged other law enforcement groups to get on board, with both the International Association of Chiefs of Police and Major County Sheriffs’ Association announcing their support last week....

But Cook, and his National Association of Assistant U.S. Attorneys, remain opposed to the legislation, and he and the organization have the ear of still skeptical lawmakers like Sens. Tom Cotton, R-Ark.; Jeff Sessions, R-Ala.; and David Perdue, R-Ga.  “The notion we should save the American people money by releasing these repeat drug traffickers — and to take tools away from prosecutors needed to successfully prosecute them — is a breach of the fundamental responsibility that the federal government has to protect its citizens,” Cook told The Daily Signal.

Cook and Fitzpatrick know each other well, and have been in frequent communication about their positions on the Sentencing Reform and Corrections Act, as the Senate’s legislation is known (although Cook says he was “very surprised” when Fitzpatrick endorsed the new bill).  Cook has served as an assistant U.S. attorney in the Eastern District of Tennessee for the last 29 years. Fitzpatrick is the district attorney for Onondaga County in New York, a position he’s held for 24 years.

McConnell is ultimately responsible for deciding whether to allow the full Senate to vote on the bill.  In weighing his decision, McConnell is no doubt considering both sides of the argument communicated by Cook and Fitzpatrick.

As most compromises go, the legislation’s actual provisions are relatively modest.  The bill aims to reduce certain mandatory minimum prison sentences created in the 1980s and ’90s during the war on drugs, which are laws that require binding prison terms of a particular length, and designed to promote consistency in punishment.  Critics charge these laws have proven to be inflexible, and, by limiting judge’s discretion to rule on the specifics of a case, have led to unfair punishments for lesser offenders.

“The number one priority of the Sentencing Reform and Corrections Act is the promotion of public safety,” Sen. Mike Lee, R-Utah, a bill sponsor, told The Daily Signal.  “Our criminal justice system is undermined when punishment delivered by the government does not fit the crime.  Our bill better protects the American people by bringing balance back to federal sentencing.”

The bill, for example, would reduce the mandatory prison sentence required for drug offenders with two or more “serious violent felony” or “serious drug felony” convictions from life without parole, to 25 years. The bill’s authors adjusted this provision, and others, so that it does not allow violent offenders from being able to petition a judge for a retroactive early release.  “To say a third-time drug offender gets 25 years instead of life, is that going to impact public safety?” Fitzpatrick said. “Not in my judgment. If you are lucky, you get 75 years on planet Earth.  If you take a third of a person’s life away from him or her, that is not what I would call a slap on the wrist.  In this society, we can survive safely in giving someone 25 to 30 years as opposed to life.”...

Still, for people who view drug trafficking as an inherently violent crime, as Cook does, the reform would reduce the punishment for offenders who have done more than possess and use drugs. “We are not prosecuting drug users in federal court,” Cook said. “This whole notion of low-level nonviolent drug offenders is wrong because that’s not who is coming into federal prison.  We are dealing with dismantling large drug trafficking organizations.”...

According to Families Against Mandatory Minimums, a nonprofit advocating for sentencing reform, 92 percent of the 20,600 federal drug offenders sentenced in fiscal year 2015 did not play a leadership or management role in the offense, and nearly half had little or no prior criminal record.

Even so, Cook contends that prosecutors would lose a major leverage tool with weakened mandatory minimums, making it harder for them to get cooperation from defendants who would help them dismantle drug trafficking organizations.  “It’s absolutely right that it [mandatory minimums] encourage people to cooperate with law enforcement officials and identify others involved in a conspiracy,” Cook said.  “There are strong incentives for offenders to not help us identify other participants, and this is the only tool we’ve got.  These are not easy people to deal with. They understand one thing, and that is how long they will be in prison.”

Fitzpatrick counters that prosecutors still could effectively do their jobs with less severe mandatory minimum sentences.  “There will always be the give and take of plea bargaining and trying to get people to cooperate,” Fitzpatrick said.  “I don’t think this statute undermines that, not when high-level offenders will still get significant prison time.”

May 17, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, May 16, 2016

President-elect in Philippines eager to bring back death penalty "especially if you use drugs"

Map-regions-2The worldwide story of capital punishment has generally involved an ever-growing number of nations moving away from regular use of the death penalty.  However, as this Time piece highlights, at least one notable nation has just elected a tough-on-crime leader eager to get his nation to execute again.  The piece is headlined "Philippine President-Elect Rodrigo Duterte Plans to Bring Back the Death Penalty," and here are the basics:

The tough-on-crime presumptive winner of the Philippine presidential election, Rodrigo Duterte, has told reporters in his first postvictory comments that he intends to bring back capital punishment.

According to Philippine news outlet GMA, Duterte told reporters in Davao City on Sunday night that he would “urge Congress to restore the death penalty by hanging, especially if you use drugs.”

Other news outlets reported that he would also give police shoot-to-kill powers against mobsters and those violently resisting arrest. “If you resist, show violent resistance, my order to police [will be] to shoot to kill,” he declared, adding: “Shoot to kill for organized crime. You heard that? Shoot to kill for every organized crime.”

Duterte’s election success has been credited to his promise to eradicate crime in a country that has the world’s 11th highest homicide rate. During his campaign, he said he would “fatten the fish” of Manila Bay with the bodies of criminals.

The President-elect’s 22-year track record as the mayor of Davao City gives him enormous credibility with Philippine voters. Before he took mayoral office, Davao was known for its war-zone-like lawlessness, but last year, a crowdsourced poll declared it fourth safest city in the world....

He is due to be sworn in as President on June 30 for a six-year term.

May 16, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

Friday, May 13, 2016

Assailing the former drug czars for "their demagoguery" and "fact-free fearmongering"

Earlier this week I posted this commentary arguing against federal statutory sentencing reform headlined "Drug dealing is a violent crime" and authored by William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush. Now I see that Kevin Ring, Vice President of Families Against Mandatory Minimums, has this new Daily Caller commentary in response headlined "Drugs Czars Peddle Fear." Here are excerpts:

Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics, once offered his insight into America’s nascent drug problem: “There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers.  Their Satanic music, jazz and swing, result from marijuana usage.  It’s easy to laugh off Anslinger’s ignorant comments because they were made in another era. But recent claims from two other former drug czars are similarly anachronistic and wrongheaded.

William Bennett and John Walters, who served as drug czars for Presidents George H.W. Bush and George W. Bush, respectively, wrote in a recent Washington Examiner op-ed, “Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.”  But who’s being dishonest? After all, words have meanings. “Violent,” for example, means to use physical force to do harm.  Yet Bennett and Walters would like people to believe that Debi Campbell, a drug addict herself who sold drugs to buyers in other states through the mail, was violent.  Campbell’s most violent act was opening an envelope, yet she served 17 years in federal prison. Stephanie Nodd was sentenced to 30 years in federal prison for helping a friend sell drugs for one month. Stephanie was just 23 years old and had never lifted a finger against any person. Neither Campbell nor Nodd could by any conceivable measure be considered “violent” criminals.  Bennett and Walters don’t want you to know they exist. But they do, and there are thousands more just like them.

Indeed, the U.S. Sentencing Commission found that of the 22,000 federal drug offenders sentenced in fiscal 2104, only 142 — or 0.7 percent — used actual violence or threats of violence. 84 percent neither used nor had a weapon during the commission of their offense.  And while Bennett and Walters are correct that most federal drug offenders are not college kids who were caught smoking a joint, they mislead readers when they describe them as “experienced traffickers.”  Nine out of ten federal drug offenders played no leadership or management role.  Many sold drugs solely for the purpose of feeding their own addiction.  Again, words mean things.  Pretending every drug sale is by definition an act of “violent victimization” is simply false....

One wonders if Bennett and Walters realize how increasingly out of step they are with conservatives across the country. Conservative governors and state lawmakers are utilizing evidence-based solutions to reduce crime and bloated prison budgets, a win-win situation for taxpayers.  Many conservatives in Washington, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Jeff Flake (R-AZ) support sentencing reform. Cruz has written, “Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration.”

But, the old drug czars say, “The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.” Even if that’s true, it’s irrelevant. The choice before Congress is not between incarcerating drug offenders and doing nothing. The more important question is whether sentencing flexibility for drug crimes can more effectively reduce recidivism — and at less cost to taxpayers — than harsh mandatory minimums.  The indisputable answer, based on decades of states’ experiences, is yes.

Refusing to let any tragedy go to waste, Bennett and Walters suggest that the frightening increase in heroin overdoses is further evidence of the need for tough drug sentencing laws.  What they fail to mention is that heroin dealers are already subject to stiff mandatory minimum sentences and have been for the past 30 years.  This heroin epidemic is occurring under the regime Bennett and Walters helped to create.  If that were not damning enough to their case, consider that the rate of illegal drug use by teenagers is the same today as it was when Bennett quit as drug czar in 1988.

I know that Bennett and Walters are genuinely concerned about making the country safer.  And I agree with them that drug dealing is reprehensible and deserving of swift and certain punishment.  Too often, however, their demagoguery appears calculated to exploit the public’s fears about safety the way Harry Anslinger exploited its racial prejudices decades ago.  Conservatives interested in reducing crime and drug abuse should ignore fact-free fearmongering and support reforms that are rooted in science, evidence, and experience.

Prior related post:

May 13, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Monday, May 09, 2016

Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"

William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush, have this notable new Washington Examiner op-ed headlined "Drug dealing is a violent crime."  Here are excerpts:

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime.  Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities.  Now, this lie is propelling legislation through Congress that will destroy more lives.

As former directors of the Office of National Drug Control Policy, we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.

Claims by President Obama and others that federal prisons are filled with "nonviolent drug offenders" and that drug dealing is a "victimless crime" are grotesquely dishonest.  How can the drug trade be victimless when most Americans know a victim?  How can it be non-violent when we witness the carnage every night on the local news?...

In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses.  And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses.  Most of these convicted drug dealers are career criminals with long rap sheets.  By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.

Drug dealing is inseparable from violent victimization.  Illegal drugs kill tens of thousands each year in overdose deaths.  More die in violent acts and accidents under the influence of drugs.  Still more die slowly of blood-borne diseases contracted through injection drug use and through high-risk behavior while under the influence of drugs, including prostitution to support addiction.  Street-level dealers look into the eyes of these victims daily as they take addicts' money and foster their self-destruction.  Traffickers at levels above the street know this reality and take their wealth from it, spreading death across neighborhoods and across the globe....

Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.  Drug dealing depends on addiction; addicts consume the vast majority of the drug supply; the dealer cultivates users to create more addicts in a murderous cycle.

Drug dealers know drugs will eventually impair judgment and bend free will, altering personality and poisoning bonds to loved ones.  We know drug use and addiction degrade millions of lives — impairing education, employment and parenthood.  Drugs are at the root of much of the child abuse, endangerment and domestic violence perpetrated against the innocent.

But the destruction is much wider. Addiction and drug dealing ravage whole communities, urban and rural.  We need look no further than the daily reports of the heroin epidemic today, or the still-vivid memories of the meth epidemic and the crack epidemic.  Drug dealing makes whole neighborhoods war zones, places of economic blight and large-scale victimization.  There is no greater single source of actual harm to Americans today — none.  The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.

Knowing this, it is an utterly irresponsible effort to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system.  The truth about drug dealing is this: It requires cruelty and willful indifference to the visible suffering inflicted on others — over and over again — harming individuals, families and whole communities.

May 9, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

Saturday, May 07, 2016

Drug war and tough-on-crime legislation (and even more judicial discretion) keeping Ohio's prison population growing

My own Columbus Disptach has this article about Ohio's continued struggles to keep its prison population under control. The piece is headlined "Ohio prison population could hit record high this summer," and here are excerpts:

Ohio's prison population is rising, threatening to set a new record as soon as July, despite repeated efforts to divert inmates from state lockups. The number of inmates in Ohio prisons increased 15.1 percent from 2005 to 2016, according to a report released today by the Correctional Institution Inspection Committee, a legislative prison watchdog agency. At the same time, prison overcrowding hit 132.1 percent, up from 114.8.

This is happening at a time when the overall crime rate in Ohio has gone down roughly 15 percent. Gary Mohr, director of the Department of Rehabilitation and Correction, sounded the alarm at statewide opiates conference earlier this week. "I think it’s a pretty safe bet that by July 1 of this year we will set an all-time historic record of incarcerated Ohioans.”

The population stood at 50,899 on May 2; the all-time record is 51,273, set in Nov. 2008. “The day I started in this business, there were 291 women Ohio women locked up in the prison system in Ohio." Mohr said. "Today we’re at 4,300.”...

Mohr has said repeatedly he will not build another prison during his time as prisons director, which could end when Gov. John Kasich leaves office at the end of 2018. State officials have been vigorously trying for a decade to reduce the prison population, largely by diverting non-violent inmates to community-based correction and substance abuse treatment programs.

But the CIIC report points out those efforts have been undercut by new "tough on crime" laws, many of them dealing with sex offenders, passed by the General Assembly, as well as a 2006 Ohio Supreme Court ruling that relaxed requirements for judges to state specific reasons for meting out maximum sentences. As a result, the number of inmates sentenced to the maximum term increased dramatically, requiring an extra 6,700 prison beds.

Drug offenses make up 27 percent of all crimes, the largest single category, followed by crimes against person (24.7 percent), property offenses (12.6 percent), burglary (11.2 percent), and sex offenses (7.5 percent). While men still far outnumber women behind bars, women are coming to prison at a much faster rate, mostly for non-violent drug and property crimes, the report showed.

The (reader-friendly) report that provides the data for this new story can be accessed at this link.

May 7, 2016 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Friday, May 06, 2016

More evidence of a failed drug war: foot soldier always high while fighting

This recent AP article, headlined "Reports: Chemist Who Worked on Drug Cases Was Usually High," provides yet another reason why I see the so-called war on drugs to be an abject failure. Here are the details:

Investigators say a former chemist who tested drugs for Massachusetts police departments was high almost every day she went to work for eight years, potentially putting thousands of criminal convictions in jeopardy.

Sonja Farak, who worked for an Amherst lab that tested drug samples for police, was high on methamphetamines, ketamine, cocaine, LSD and other drugs during most of her time there, even when she testified in court, according to a state investigative report released Tuesday. Farak worked at the lab between 2005 and 2013.

Cyndi Roy Gonzalez, a spokeswoman for Attorney General Maura Healey, said the information gathered about Farak "will no doubt have implications for many cases," but it is unclear just how many. She said it will be up to prosecutors, defense attorneys and the courts to determine the full scope of cases affected by Farak's misconduct. "We are deeply concerned whenever the integrity of the justice system is called into question or compromised," she said.

One defense attorney told the Boston Herald that Farak handled about 30,000 cases during her career. "This is a statewide scandal, and I think it's going to take an enormous toll on the system," attorney Luke Ryan said.

Farak's case is unrelated to the case of Annie Dookhan, who worked at a state drug lab in Boston. Dookhan was sentenced in November 2013 to at least three years in prison after pleading guilty to faking test results in criminal cases that jeopardized thousands of convictions.

The American Civil Liberties Union of Massachusetts said the number of criminal cases affected by Farak's misconduct could rival the approximately 40,000 cases thrown into question by Dookhan's actions. "It's now beyond doubt that the drug war in Massachusetts during the Dookhan-Farak era was built on a foundation of falsified evidence," said Matthew Segal, the ACLU's legal director.

Segal said he doesn't have an estimate of how many cases could be challenged, but said prosecutors who got convictions using drug samples she tested "have an obligation to identify and notify everyone who might have been denied due process" as a result of Farak's actions. Segal said that because Farak admitted ingesting lab "standards" — drug samples used as benchmarks to test against substances submitted by police for testing — all cases that went through the lab should be re-examined.

Last year, the Supreme Judicial Court of Massachusetts ordered an investigation into the timing and scope of Farak's misconduct. Healey's office conducted the investigation. Many of the shocking details came from Farak's own grand jury testimony, including that she once smoked crack before a 2012 state police accreditation inspection of the now-closed lab. Farak also testified that she manufactured crack cocaine for her personal use in the lab.

Farak, 37, of Northampton, pleaded guilty to tampering with evidence, stealing cocaine from the lab and unlawful possession in January 2014 and was sentenced to 18 months behind bars and five years of probation. She served her sentence and has been released from prison....

Gov. Charlie Baker said the state will likely have to allocate more money to deal with the Farak scandal. In the Dookhan case, the state Legislature authorized up to $30 million to cover costs incurred by the court system, prosecutors, public defenders and other state agencies. "We certainly believe we are going to have a big responsibility to work with the courts and with others to make sure that people who are affected by this have the appropriate opportunity to engage in that conversation," Baker said. "And we fully expect we will be doing that for the next several months."

May 6, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, May 05, 2016

Prez Obama commutes 58 more federal drug sentences

As detailed via this terse White House press release, "On May 5, 2016, President Barack Obama granted commutation of sentence to 58 individuals." The release lists the 58 new recepients of executive clemency, and a quick scan reveals that all appear to be drug defendants and most involving cocaine and/or crack.

This press release from NACDL adds these notable particulars: "In his second set of clemency grants in under six weeks, President Barack Obama commuted the sentences of 58 prisoners today, 28 of whom were applicants whose petitions were supported by Clemency Project 2014."

UPDATE:  I just saw that Prez Obama now has this new Medium entry headlined "A Nation of Second Chances." Here are excerpts:

Earlier this spring, I met with a group of individuals whose sentences were commuted either by President Bush, President Clinton, or myself. They were all at different stages of a new chapter in their lives, but each of their stories was extraordinary.

Take Phillip Emmert. When he was 27, Phillip made a mistake. He was arrested and convicted for distributing methamphetamines and received a 27-year sentence. So, by the time he was released, he’d have spent half his life behind bars. Unfortunately, while in prison, his wife was paralyzed in an accident. So while he was in prison, Phil learned everything he could about fixing heating and air conditioning systems — so he could support his wife when he got out. And after his sentence was commuted by President Bush, he was able to do just that. Today, he’s gainfully employed. He’s a caregiver for his wife, an active father, and a leader in his community.

Like so many nonviolent offenders serving unduly harsh sentences, Phillip is not a hardened criminal. He’s taken responsibility for his mistakes. And he’s worked hard to earn a second chance.

Today, I commuted the sentences of an additional 58 individuals just as deserving as Phillip — individuals who can look to him as inspiration for what is possible in their lives.

As President, I’ve been working to bring about a more effective approach to our criminal justice system, particularly when it comes to drug crimes. Part of that effort has been to reinvigorate our commutations process, and highlight the individuals like Philip who are doing extraordinary things with their second chances. To date, I will have commuted 306 individual sentences, which is more than the previous six presidents combined....

As a country, we have to make sure that those who take responsibility for their mistakes are able to transition back to their communities. It’s the right thing to do. It’s the smart thing to do. And it’s something I will keep working to do as long as I hold this office.

May 5, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23)

Lots of new and notable recent state marijuana reform developments

Regular readers know they should be regularly checking out my (not-so) regular postings at my other active blog Marijuana Law, Policy and Reform for updates on marijuana reform stories.  This week there have been particularly notable reform developments in notable states from coast to coast that I thought merited highlighting here: 

Even for those folks only interested in marijuana reform as a small piece of broader criminal justice reform policies and politics, I think developments in big state California and swing state Ohio are especially important to watch.  In particular, if there were to be big marijuana reform wins at the ballot in November (e.g., if voters were to approve reforms by 60% or more) in both states --- and also, say, in at least one other big swing state like Arizona or Florida ---  I think it would thereafter prove close to impossible for the next President not to make some kind of federal marijuana reform a priority in 2017.

May 5, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Monday, May 02, 2016

Reviewing the type of federal drug case that the SRCA should most impact

Mandatory_minimums_1abe826ceaaedee05283c916fe4b2585.nbcnews-ux-600-480This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:

When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.

Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.

Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....

Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.

At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...

The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."

This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.

That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.

In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.

Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.

John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.

May 2, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, April 28, 2016

Oklahoma joins long list of "red states" enacting significant sentencing reforms

As reported in this local article, headlined "Criminal justice reform bills signed into law by Oklahoma governor," another state known for its conservative politics should now also be known as another state that has enacted significant reforms intended to soften its sentencing system and reduce its prison population. Here are the details:

Four criminal justice reform measures were signed into law by Gov. Mary Fallin on Wednesday. The action comes at a time when the state’s prison system is operating at 122 percent of capacity.

“We want to be tough on crime, but we want to be smart on crime,” Fallin said.

The criminal justice reform bills she signed Wednesday are:

  • House Bill 2472, which gives prosecutors discretion to file charges for crimes that are not subject to the 85 percent rule as misdemeanors instead of felonies. The 85 percent rule requires that those convicted of certain crimes, including rape and murder, serve at least 85 percent of their sentences before they can be considered for release.
  • HB 2479, which reduces the mandatory minimum sentence for drug offenders charged only with possession.
  • HB 2751, which raises the threshold for property crimes classified as felonies to $1,000 from $500.
  • HB 2753, which would broaden defendants’ eligibility for drug courts and community sentencing. The measures are designed to curb the growing prison population.

“These measures are just the beginning,” said Rep. Pam Peterson, R-Tulsa, the House author of the bills. Fallin said it costs just under $20,000 a year to incarcerate an offender and about $5,000 a year for one defendant in drug court.

House Speaker Jeff Hickman, R-Fairview, said the state still has a crisis in corrections and incarceration. “This is not the end of the mission,” he said, adding that other criminal justice reform bills are working their way through the legislative process.

Former Tulsa County District Attorney Tim Harris attended the bill signing in the Blue Room at the Capitol. The measures give the state more options to prevent Oklahomans from becoming convicted felons and help them get the treatment they need, Harris said. “It is not soft on crime,” he said. “It holds criminals accountable without breaking the bank. It is cost neutral to the taxpayer right now.”

Oklahoma County District Attorney David Prater said the state needs to take steps to move mental health and substance abuse treatment to the front end. “With measures like this, I do believe that ultimately we will see a decrease in the prison population while not increasing violent crime, and actually this will have a positive impact, I believe ultimately, on public safety,” Prater said.

April 28, 2016 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, April 18, 2016

Colorado Department of Public Safety releases "Marijuana Legalization in Colorado: Early Findings"

This new Denver Post piece, headlined "Fewer Coloradans seek treatment for pot use, but heavier use seen," reports on this notable new official state government report from Colorado (which I believe was just released today, but bears a cover date of March 2016). Here is a basic summary via the Denver Post piece:

Colorado's treatment centers have seen a trend toward heavier marijuana use among patients in the years after the state legalized the drug, according to a new report from the Colorado Department of Public Safety. The 143-page report released Monday is the state's first comprehensive attempt at measuring and tracking the consequences of legalization.

In 2014, more than a third of patients in treatment reported near-daily use of marijuana, according to the report. In 2007, less than a quarter of patients reported such frequency of use. Overall, though, the number of people seeking treatment for marijuana has dropped since Colorado voters made it legal to use and possess small amounts of marijuana. The decrease is likely due to fewer people being court ordered to undergo treatment as part of a conviction for a marijuana-related crime.

The finding is among a growing body of evidence that marijuana legalization has led to a shift in use patterns for at least some marijuana consumers. And that is just one insight from the new report, which looks at everything from tax revenue to impacts on public health to effects on youth. Among its findings is a steady increase in marijuana use in Colorado since 2006, well before the late-2000s boom in medical marijuana dispensaries. The report documents a sharp rise in emergency room visits related to marijuana. It notes a dramatic decline in arrests or citations for marijuana-related crimes, though there remains a racial disparity in arrest rates.

But the report, which was written by statistical analyst Jack Reed, also isn't meant as a final statement on legalization's impact. Because Colorado's data-tracking efforts have been so haphazard in the past, the report is more of a starting point. "[I]t is too early to draw any conclusions about the potential effects of marijuana legalization or commercialization on public safety, public health, or youth outcomes," Reed writes, "and this may always be difficult due to the lack of historical data."

It's not just the lack of data from past years that complicates the report. Reed also notes that legalization may have changed people's willingness to admit to marijuana use — leading to what appear to be jumps in use or hospital visits that are really just increases in truth-telling. State and local agencies are also still struggling to standardize their marijuana data-collection systems. For instance, Reed's original report noted an explosive increase in marijuana arrests and citations in Denver, up 404 percent from 2012 to 2014. That increase, however, was due to inconsistent data reporting by Denver in the official numbers given to the state.

Intriguingly, though this lengthy report comes from the Colorado Department of Public Safety, not very much of the report discusses general crimes rates at much length. But what is reported in this report is generally encouraging:

Cross-posted at Marijuana, Law, Policy & Reform

April 18, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Saturday, April 16, 2016

"The history of drug criminalization in America is a history of social panics rooted in racism and xenophobia"

Ungass_2016-624x312The title of this post is the subheadline of this new Salon comentary carrying the primary headline "The real reason cocaine, heroin and marijuana are illegal has nothing to do with addiction."  Here is how the lengthy piece gets started:

Looking out at the trail of devastation and death that the heroin epidemic has left in its wake, it’s hard to imagine that not long ago one could purchase the drug from a Sears catalogue.  Heroin was created by German chemists during the late 1890s and marketed through Bayer, the company best known for selling aspirin.  For decades, suburban housewives could peruse pages of flashy advertisements for Bayer Heroin, the cure for sore throats, coughs, headaches, diarrhea, stress and menopause.  In fact, until recently the percentage of Americans using opium-derived medicine was higher at the turn of the 20th century than at any other time in history.

The majority of illicit drugs we see today were once legal, popular and used for medicinal purposes.  Cocaine made its debut in toothache drops marketed to children.  Cannabis was recognized for its ability to relieve pain and nausea long before it became associated with youthful vagrancy.

As the world grapples with the fallout from the War on Drugs — and heads towards UNGASS 2016, a possible opportunity to put things right — it’s important to know the history of these drugs and their journey from medicine to menace. We didn’t suddenly discover that they were far more addictive or dangerous than other medicines.  In fact, the reasons that drugs like heroin, cocaine, marijuana and others are illegal today have far more to do with economics and cultural prejudice than with addiction.

Heroin was the first to fall from pharmaceutical darling to a demonized, black-market street drug.  Long used as a cure for aches and pains, it wasn’t until Chinese immigrants came to the United States to work on the railroads and mines that opium-based products such as heroin were perceived as dangerous.  American settlers were not happy with the Chinese arrivals, who brought with them a cultural tradition of smoking opium for relaxation in the evenings.  The settlers accused the Chinese of “taking our jobs,” and economic resentment morphed into rumors of Chinese men luring white women into opium dens and getting them addicted.  Rumors turned to fear, which turned to hysteria, which politicians seized upon.  In 1875 California passed the first anti-opium law, enforced by raids on Chinese opium dens. Other states soon followed.  The first federal law regulating heroin was the Harrison Act of 1914, which eventually led to its criminalization.

Cocaine was criminalized for similar reasons, only this time the backlash was directed against black Americans.  After the Civil War, economic resentment simmered over the freed slaves gaining a foothold in the economy.  White Southerners grumbled about black men “forgetting their place,” and fears spread about a drug some of them smoked, which was rumored to incite them to violence.  In the early 1900s New Orleans became the first city to slap down laws against cocaine use and the trend quickly spread, dovetailing with efforts in Latin America to criminalize the coca leaf, an ingredient in cocaine, which was used for religious purposes among indigenous populations.

Marijuana was next in the firing line.  During the 1920s, tensions sprang up in the South over the influx of Mexican immigrants who worked for low wages.  By the 1930s, the Great Depression had bred panic among people desperate for work and they directed their angst towards immigrants.  The media began propagating stories about Mexicans and their mysterious drug, marijuana.  The first national law criminalizing marijuana, the Marihuana Tax Act of 1937, passed thanks to a strong push from Harry Anslinger, head of the Federal Bureau of Narcotics, who referred to marijuana as “the most violence-causing drug in the history of mankind.”

While such claims of marijuana inducing violence may sound ridiculous to those of us who know marijuana as a drug that does precisely the opposite, it goes to show that the criminalization of drugs has little to do with relative risk or danger.  Instead, the main impetus for criminalization is fear over certain groups seen as an economic or cultural threat to established America.  Recognizing this fact does not mean ignoring or minimizing the very real harm that drugs can cause.

Most illicit drugs carry risks and serious potential for problematic use.  But so does glue. So do gasoline, cough syrup, shoe polish, paint thinner, nail polish remover, cleaning fluids, spray paint, whipped cream cans, vanilla extract, mouthwash, nutmeg, prescription pills and countless other household items that are not only addictive, but potentially fatal if misused.

April 16, 2016 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, April 15, 2016

Supreme Court of Canada declares a one-year(!) mandatory-minimum drug sentence unconstitutional

In the United States, some defendants can and have received mandatory life without parole sentences for drug offenses, and most federal mandatory minimum drug sentences come in 5- and 10-year chunks of required prison time even for first offenders. And, to date, none of these laws have been found constitutionally problematic largely because, back in 1991, the Supreme Court held in Harmelin v. Michigan that the Eighth Amendment's cruel an unusual clause did not preclude Michigan from imposing a mandatory LWOP sentence on a defendant convicted of possessing more than 650 grams of cocaine.

Fast forward a quarter-century and this news about a new Canadian court ruling shows our neighbor jurists to the north have a much different conception of what kind of mandatory drug sentence violates a constitutional provision precluding cruel and unusual punishments.  The article is headlined "Rulings from Canada's top court strike down mandatory minimum sentences for drugs and bail conditions," and here are the basics:

The Supreme Court of Canada has ruled that two key "tough on crime" measures brought in by the previous Conservative government are unconstitutional. In the first case, the court ruled 6-3 that a mandatory minimum sentence of one year in prison for a drug offence violates the Charter of Rights and Freedoms. It centres on Joseph Ryan Lloyd, a man with drug addictions in Vancouver's Downtown Eastside, who was convicted of trafficking after police caught him in 2013 with less than 10 grams of heroin, crack cocaine and crystal methamphetamine.

The court ruled the sentence cast too wide a net over a wide range of potential conduct, catching not only the serious drug trafficking that is its proper aim, but also conduct that is "much less blameworthy. "

"If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentence," the decision reads. "In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment." The dissenting view argued that the law as drafted was narrow enough, and that it did not amount to cruel and unusual punishment.

The sentence imposed stemmed from the so-called "omnibus crime bill" brought in by the Stephen Harper government in 2012. The Safe Streets and Communities Act, also known as C10, made sweeping changes to Canada's criminal justice system, including mandatory minimum sentences for non-violent drug offenders.

On Friday, Prime Minister Justin Trudeau said the Liberal approach to criminal justice is to protect public safety while respecting rights. He said mandatory minimums are appropriate in some conditions, and noted that past Liberal governments have imposed them for certain crimes like murder. "At the same time, there is a general sense, reinforced by the Supreme Court decision, that mandatory minimums brought in by the previous government in a number of cases went too far," he said after an event in Waterloo, Ont.

A mandate letter from Trudeau to Justice Minister Jody Wilson-Raybould called for an overhaul of the measures brought in by the Conservatives. "You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system," the letter reads.

In the other case, the Supreme Court was unanimous in ruling that a person who is denied bail because of prior convictions should be able to receive credit for time served before sentencing. Normally, a person denied bail can get 1.5 days of credit for each day spent in pre-sentence custody, reflecting what are often harsh conditions with a lack of access to programs. Under sentencing reforms introduced by the Conservatives in 2009, a person denied bail because of a previous conviction is not eligible for enhanced credit.

The mandatory minimum ruling in R. v. Lloyd can be accessed at this link, and here is one key passage from the majority opinion in Lloyd:

The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.  This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.  If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences.  In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.

Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one‑year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter.  This violation is not justified under s. 1. Parliament’s objective of combatting the distribution of illicit drugs is important.  This objective is rationally connected to the imposition of a one‑year mandatory minimum sentence under s. 5(3)(a)(i)(D) of the CDSA. However, the provision does not minimally impair the s. 12 right.

April 15, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (6)

Thursday, April 14, 2016

Two timely stories of marijuana reform not yet helping those serving "Outrageous Sentences For Marijuana"

From two very different media sources today, I see two very notable stories of defendants convicted of marijuana-related offenses serving extreme sentences for a type of behavior that is now "legal" at the state level in some form throughout much of the United States. 

First, the New York Times has this new editorial headlined "Outrageous Sentences for Marijuana," which starts this way:

Lee Carroll Brooker, a 75-year-old disabled veteran suffering from chronic pain, was arrested in July 2011 for growing three dozen marijuana plants for his own medicinal use behind his son’s house in Dothan, Ala., where he lived.  For this crime, Mr. Brooker was given a life sentence with no possibility of release.

Alabama law mandates that anyone with certain prior felony convictions be sentenced to life without parole for possessing more than 1 kilogram, or 2.2 pounds, of marijuana, regardless of intent to sell.  Mr. Brooker had been convicted of armed robberies in Florida two decades earlier, for which he served 10 years. The marijuana plants collected at his son’s house — including unusable parts like vines and stalks — weighed 2.8 pounds.

At his sentencing, the trial judge told Mr. Brooker that if he “could sentence you to a term that is less than life without parole, I would.” Last year, Roy Moore, chief justice of the Alabama Supreme Court, called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws, but the court still upheld the punishment.

On Friday, the United States Supreme Court will consider whether to hear Mr. Brooker’s challenge to his sentence, which he argues violates the Eighth Amendment’s ban on cruel and unusual punishments. The justices should take the case and overturn this sentence.

Second, AlterNet has this new piece with this lengthy headline, "As Marijuana Goes Mainstream, California Pioneers Rot in Federal Prison: Luke Scarmazzo and Ricardo Montes opened a dispensary in Modesto. Now they're doing 20 years in federal prison. Their families want them home. "  Here is how it starts:

Behind the headlines about President Obama’s historic visit to federal prisons and highly publicized releases of non-violent drug offenders, the numbers tell a different story. Despite encouraging and receiving more clemency petitions than any president in U.S. history — more than the last two administrations combined, nearly 20,000 — very few federal prisoners are actually being granted clemency.

Nowhere is this irony more glaring than in the world of legal cannabis. Cannabis is now considered the fastest-growing industry in the nation, yet remains federally illegal. The sea change from the Department of Justice since 2009 has allowed state-legal cannabis industries to thrive. Federal solutions seem to be around the corner and for the first time cannabis businesses are being publicly traded and receiving legal Wall Street investment.

Ricardo Montes and Luke Scarmazzo are two of the 20,000 federal prisoners appealing to President Obama for clemency. They have exhausted their appeals and are serving 20-year mandatory minimum sentences for openly running a dispensary in the early days of California’s pioneering medical cannabis law. The irony isn’t lost on them that their crimes are now legal and profitable, but their appeals for clemency aren’t based on justice anymore — they just want to be home with their kids. Their daughters, Jasmine Scarmazzo, 13, and Nina Montes, 10, are appealing directly to President Obama to release their fathers via a Change.org petition.

Given that the Supreme Court has often stated and held that the Eighth Amendment's "scope is not static," but "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958), I think both these cases should be pretty easy constitutional calls if courts and/or executive branch officials took very seriously a commitment to updating and enforcing Eighth Amendment limits on lengthy prison terms in light of the obviously "evolving standards of decency" concerning medical use of marijuana throughout the United States and the world.  But, while hoping for some judicial or executive action in this arena, I am not holding my breath that any of these medical marijuana offenders will be free from incarceration anytime soon.

April 14, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, April 13, 2016

Restrictive medical marijuana reforms proposed by Ohio legislature in shadow of broader initiative effort

As a bellwether state with a long history of picking White House winners, I often feel very lucky to be in Ohio in big election years to observe how local, state and national politics surrounding various criminal justice issues play out in the Buckeye State.  But this year, given my particular interest in marijuana reform, law and policy and the coming (brokered?) GOP convention in Cleveland, my Buckeye political and policy cup is already running over.  

I bring all this up today because, as detailed in this new local article, "Ohio state lawmakers release plan to legalize medical marijuana," local GOP legislative leaders in Ohio are now actively peddling an important (but restrictive) medical marijuana reform proposal at the same time the national Marijuana Policy Project is gathering signatures and building a campaign for (much broader) medical marijuana reform in the form of a November 2016 voter initiative to amend the Ohio Constitution.  Here are the basics and latest in these dynamic ongoing Buckeye marijuana reform developments:

Ohio state lawmakers released plans today to legalize marijuana for medical use. The bill being considered would allow doctors to write notes for marijuana for medical use. It would still allow for drugfree workplaces.

People who use medical marijuana, could still be fired from their job, according to the bill.  The bill will not allow for home growing of marijuana.

Doctors would be required to periodically report to the state why they are prescribing marijuana instead of other drugs. Anyone taking medical marijuana under the age of 18 would require parental consent.

Ohio lawmakers are also asking the federal government to change marijuana from a Schedule 1 drug to a Schedule 2 drug.  Hearing will start soon on the legislation and there could be as many as two hearings a week. No word yet on where Gov. John Kasich stands on the legislation.

The move comes as groups start collecting signatures to put an issue on the ballot before voters in November.... [and] polls show that legalizing marijuana just for medical use is popular across the state....

Ohioans for Medical Marijuana, which is backed by a national group, expects to spend $900,000 collecting 306,000 valid voter signatures to qualify for the November ballot.

Cross-posted at Marijuana Law, Policy and Reform (where in coming days I will do some anaylsis of the Ohio bill and reactions thereto).

April 13, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Important drug offender data begging hard normative policy question regarding noncitizen US prisoners

Attachment-1I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals."  The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):

U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....

[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.

As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).

The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.

There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons.  As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.

In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.

In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.

The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population.  Federal drug and immigration enforcement are for now inextricably tied together....

Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.

Reforming drug sentencing laws is one thing.  Releasing criminal aliens back into U.S. interior, is quite another.  The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public.  Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.

This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.

It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.

The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?

Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner.  But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).

April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)

Friday, April 08, 2016

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

The US Sentencing Commission's website has this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated April 2016, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782.  The data in this report reflects all motions decided through March 25, 2016 and for which court documentation was received, coded, and edited at the Commission by March 29, 2016."

The official data in the report indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, now 26,850 federal prisoners have had their federal drug prison sentences reduced by an average of 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 around $1.9 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 evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.  Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the US Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.

April 8, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Should we be linking nationwide crime spikes to heroin addiction and the black market it is driving?

The question in the title of this post is prompted by these two recent New York Times article:

As with all short-term and long-term changes in crime rates and patterns, I am strongly disinclined to assert or even suggest that a single causal factor provides a simple account for what is transpiring.  That said, I do not think it is a mere coincidence that opioid problems and broader crime problems have been increasing together.

April 8, 2016 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (4)

Tuesday, April 05, 2016

"How Drug Warriors Helped to Fuel the Opioid Epidemic"

The title of this post is the headline of this notable new Atlantic piece.  Here is how it starts and ends:

Despite almost 50 years of the drug war — a policy that creates black markets, enriches drug cartels, and fuels killing zones in scores of cities, even as it causes the United States to cage more human beings than any other democracy in the world — it remains extremely easy for Americans to acquire the most addictive, deadly drugs.

“Overdoses from heroin, prescription drugs, and opioid painkillers have overtaken car accidents to become the leading cause of injury-related deaths in America,” The Economist reports.  “In 2014, they were responsible for 28,647 deaths. Between 2001 and 2014, deaths from heroin overdoses alone increased six-fold, according to the National Institute on Drug Abuse.  On average, 125 people a day die from drug overdoses, 78 of them from heroin or painkillers. These numbers have been compared to deaths from HIV in the late 1980s and 1990s.”

Had the War on Drugs merely failed to prevent this epidemic, even as it destabilized numerous countries and undermined domestic liberties, it would be an abject failure.  But federal drug policy has actually been worse than useless in heroin’s rise.

In a saner world, American researchers and patients would’ve spent the last several decades experimenting with marijuana to maximize its potential as a pain reliever.  Pot use isn’t without health consequences, but is much less harmful than many prescription drugs.  Instead, drug warriors fought to stymie marijuana research, keep pot illegal, and stigmatize medical marijuana as a dangerous fraud, even as doctors prescribed more opioid painkillers — that is, medical heroin. Many get addicted, and when the pills run out, they seek a street substitute....

“What has made it previously difficult to emphasize treatment over criminal justice,” President Obama said last month, “is that the problem was identified as poor, minority, and as a consequence, the thinking was, it's often a character flaw in those individuals who live in those communities, and it's not our problem they're being locked up. One thing that's changed in this opioid debate is that it reaches everybody.  Because it's having an impact on so many people, we're seeing a bipartisan interest in addressing this problem … not just thinking in terms of criminalization or incarceration, which unfortunately has been our response to the disease of addiction."

But even today’s reformers are far too timid. The War on Drugs rages daily, and it is still a catastrophe.  The catastrophe is rooted in the black markets that federal policy creates.  It is exposed by the urban killing zones that those markets guarantee.  It is shown to be futile by the ease of acquiring the most addictive drugs despite prohibition. And it is exacerbated by decades of efforts to prevent milder drugs from serving as substitutes.  End it.

April 5, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, April 04, 2016

Senators Grassley and Feinstein convening hearing on whether DOJ is "Adequately Protecting the Public" from state marijuana reforms

This recent press release from US Senate's Caucus on International Narcotics Control details that this caucus has a hearing scheduled to explore how the federal government is keeping an eye on state-level marijuana reforms. (Exactly what this has to do with international control is unclear, but big-government drug warriors on both sides of the political aisle like Senators Grassley and Feinstein have never really been too keen to worry about limiting government growth in this arena.) Here are the basic details on what is prompting this hearing:

Sen. Chuck Grassley, Chairman of the Judiciary Committee and the Caucus on International Narcotics Control, and Sen. Dianne Feinstein, Co-chairman of the Caucus on International Narcotics Control, will hold a hearing entitled, “Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?”

In August 2013, the Obama Administration decided to effectively suspend enforcement of federal law on marijuana in states that legalized it for recreational use. But to disguise its policy as prosecutorial discretion, the Administration also announced federal priorities that it claimed would guide its enforcement going forward. These priorities include preventing marijuana from being distributed to minors, stopping the diversion of marijuana into states that haven’t legalized it, and preventing adverse public health effects from marijuana use. At the time, the Justice Department warned that if state efforts weren’t enough to protect the public, then the federal government might step up its enforcement or even challenge the state laws themselves. This put the responsibility on the Department of Justice to monitor developments in these states, develop metrics to evaluate the effectiveness of its policy, and change course if developments warranted.

But a report from the Government Accountability Office that Grassley and Feinstein requested found that the Administration doesn’t have a documented plan to monitor the effects of state legalization on any of these priorities. Moreover, according to the report, officials at the Department could not even say how they make use of any information they receive related to these priorities. Grassley and Feinstein are convening this hearing to explore this problem.

What I find most notable and disconcerting about this hearing is that it claims to be exploring whether the big federal government bureaucrats inside the Beltway at DOJ who are very far removed from direct public accountability are "protecting the public" from state reforms in Alaska and Colorado and Oregon and Washington which were enacted directly by the public through voter initiatives.

Cross posted at Marijuana Law, Policy and Reform.

April 4, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

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)