Wednesday, September 03, 2014

"Life sentence for buying marijuana?"

CA6K4VHLThe question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU.  An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront."  And this companion piece, headlined "The price of pot," provides this additional preview:

Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.

This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime?  Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.

  And now here are now excerpts from the commentary by  Vanita Gupta: 

Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.

The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....

While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.

We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.

Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.

The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.

But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.

According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.

The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.

As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.

September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Tuesday, September 02, 2014

Another drug sentencing sign of these political times in Massachusetts

This local article from Massachusetts, headlined "Candidates back reform of drug sentencing guidelines," provides more evidence that political candidates these days appear much more likely to support repeal or reform of severe drug sentencing laws rather than support increasing sentences for drug offenses. Here are the details:

Candidates for major offices this year in Massachusetts are backing the repeal or reform of mandatory minimum criminal sentences for drug offenses, according to a report released Tuesday.

Families Against Mandatory Minimums found 92 percent of the 24 candidates who responded to its survey favored repeal or reform of mandatory minimum drug sentences, with 75 percent, including Republican candidate for governor Charlie Baker, supporting repeal of such laws. "No candidate was in favor of longer mandatory minimum sentences or additional mandatory minimum sentences for drug offenses," the group wrote in its report, released just over a week before the Sept. 9 primary elections.

In part as a pledge to Gov. Deval Patrick, legislative leaders vowed in 2012 to revisit criminal sentencing reform ideas in the 2013-2014 session but never got behind legislation to fulfill that promise.

In her questionnaire, attorney general candidate Maura Healey backed ending mandatory minimums for non-violent drug offenses, reforming bail to ensure that indigent defendants are not in jail for lack of ability to pay, and expanding the use of drug courts, mental health courts, and veterans treatment courts.

Attorney general candidate Warren Tolman referred the group to his "Smart on Crime" plan and wrote, "I not only support repeal of mandatory minimum sentences for drug offenses, I will lead the fight to repeal them!"

Cape & Islands District Attorney Michael O'Keefe bucked the trend, saying he would support reforms to minimum mandatory sentences but not an outright repeal, and disputed FAMM's contention that low level drug offenders are ensnared by laws intended to punish criminals higher up the food chain. "Your contention that 'non-violent/low level drug offenders are receiving the same lengthy sentences intended for kingpins' is not true yet is repeated over and over again. Please supply me the name of one case. Just one. Thank you," O'Keefe wrote, noting his involvement with a 2012 sentencing reform law....

In her response, Attorney General Martha Coakley, who is running for governor, said she supports "increased flexibility" for sentencing non-violent offenders. "I support mandatory minimum sentences for the most dangerous criminals, like murderers and those who prey on children, but I support increased sentencing flexibility for individuals convicted of non-violent crimes," Coakley wrote.

"I support eliminating or curtailing inflexible and often counterproductive mandatory minimum sentences for low-level, non-violent drug offenses to provide judges with wider discretion in sentencing," Treasurer Steven Grossman, who is facing Coakley in the primary, wrote.

Democratic gubernatorial candidate Don Berwick and Baker both supported repealing mandatory minimum sentences for non-violent drug offenders. Baker's primary opponent, Mark Fisher, did not respond to the survey. The three independents running for governor, Jeff McCormick, Evan Falchuk and Scott Lively, all supported repealing mandatory minimums for drug offenders, while McCormick said he would "stand behind tougher sentencing for more violent crimes or those involving 'king pins'."

"These results confirm that drug sentencing reform is now a mainstream issue," said Barbara Dougan, director of FAMM's Massachusetts project, in a statement. "Political candidates in Massachusetts are clearly eager to take a second look at our state's sentencing policies, just as federal and state legislators across the U.S. are doing."...

The 2012 reform law lowered mandatory minimum sentences for drug offenses and also established a sentencing requirement that habitual offenders of certain violent crimes receive the maximum penalty. The Legislature has not returned to sentencing reform. Asked about that in July, Senate President Therese Murray said she was following the will of the members.

September 2, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 01, 2014

Gendered perspective on Ohio's challenges with opioids and prison growth

As reported in this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," Ohio has struggled of late with an increase in its prison population.  And this reality has prompted at least one prominent paper to urge reforms focused on a particular demographic:

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women. From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854, said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction.

Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright. Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade. Altogether, Ohio’s 28 prisons hold more than 50,000 inmates....

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs. To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court. The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction. Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

Finally, prisons must expand the amount of effective drug treatment they provide, even as Ohio courts continue to send them people who would be better served in community programs. The growing number of women entering prison in Ohio is more than a demographic shift. It’s a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its heroin and opioid epidemic.

September 1, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, August 28, 2014

How should governments approach a product that research suggests reduces overdose deaths, domestic violence and Alzheimer's?

The question in the title of this post is prompted by this week's research news indicating, as reported in recent posts here and here, that reform of marijuana prohibition and/or marijuana use might alleviate some of biggest social ills and public health concerns in the United States.

In a prior post, I noted that I have been trying to avoid claiming that marijuana reform likely can and will improve many social ills and that marijuana is some kind of magical wonder drug.  But upon seeing this notable new FoxNews piece, headlined "Marijuana compound may slow, halt progression of Alzheimer's," it is now that much harder for me to resist suggesting that marijuana reform could very well end up being a real boon for public health.  

Perhaps even more importantly, as the question in the title of this post highlights, I think it is now becoming especially difficult for government officials and bureaucrats to keep saying seriously and aggressively that even considering the reform of marijuana prohibition is obviously dangerous and is sure to result in profound public health problems.  I certainly understand and appreciate and respect concerns of anti-drug advocates who, I believe in good-faith, fear the potential consequences of wide-spread repeal of marijuana prohibition.  But, especially in light of the growing research suggesting marijuana reform may do a whole lot more good than harm, I hope prohibitionist might become a bit more open-minded about array of positives that might come from smart, good-government, liberty-enhancing reforms in this arena.

August 28, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, August 27, 2014

Drug addiction specialist laments that "our prison system does little more than teach addicts how to be better addicts"

I just saw this notable recent Washington Post commentary by David Sack, a psychiatrist and addiction specialist, headlined "We can’t afford to ignore drug addiction in prison." The piece merits a full read and here are excerpts:

As the addiction epidemic rages and prisons overflow, our nation seems to be backing away at last from the “lock ’em up and throw away the key” mindset that has characterized the failed war on drugs.... Sure, this is inspired largely by the need to relieve the pressure on our prison system, which is straining to cope with a population that has more than quadrupled since 1980. But it’s also recognition that we can't incarcerate ourselves out of our drug problems.

As someone who helps people with addictions, I consider this good news.  But I'd be more encouraged if we also focused on improving conditions in prison.  In the long run, this will have more power to reduce our inmate population.  As it is, our prison system does little more than teach addicts how to be better addicts.

Inmates are likely to find a drug trade as active as the one outside prison walls.... Of the more than 2.3 million people in American prisons and jails, more than 65 percent meet medical criteria for substance abuse addiction.  When you combine this with those who have histories of substance abuse, were under the influence when they committed a crime, committed it to get drug money, or were incarcerated for a drug or alcohol violation, the percentage rises to 85 percent.  In other words, if an inmate is looking for encouragement to “Just say no,” odds are he won't find it from his bunkmates.

But most disturbing is the fact that inmates who do hope to kick an addiction can’t count on getting the help they need.  The National Center on Addiction and Substance Abuse (CASA) at Columbia University found that only 11 percent of inmates with substance use disorders received treatment at federal and state prisons or local jails.  The best that most can hope for is occasional mutual support or peer counseling meetings.  No wonder that more than half of inmates with addiction histories relapse within a month of release.

So what is needed?  Inmate evaluations to spot addictions and underlying issues that may be fueling them....  Consistent treatment by a trained staff that includes addiction medicine specialists who understand how to use evidence-based treatments, including medication-assisted therapy.  Long-term treatment programs that follow the inmate into his community and continue to support him after his release.

It’s a substantial investment, and your first thought may be, “We can't afford to do that.” But the reality is we can’t afford not to do it.  As it stands now, only 1.9 cents of every dollar our federal and state governments spend on substance use and addiction go to pay for prevention and treatment; 95.6 percent pay for the consequences. That means we are shelling out billions of dollars to clean up the mess of addiction rather than doing what we know pays off -- helping people overcome it.

A 2010 CASA study, for example, determined that if we gave quality addiction treatment and aftercare to every inmate who needed it, we'd break even on the investment in only a year if just more than 10 percent were successful in staying employed, out of trouble and drug free.  In dollar terms, that translates to an economic benefit for the nation of more than $90,000 annually per former inmate.  Studies confirm that addicts pressured to undergo treatment by the legal system fare as well or better than those who seek treatment voluntarily....

While it’s tempting to think punishment is the answer [to drug crimes and addiction], prison alone doesn’t teach addicts how to change their thinking and behavior, doesn’t help repair damaged neural pathways and doesn't take away drug cravings or offer strategies to prevent relapse.  In most cases, prison just buys a little time before the addict relapses and re-offends, perpetuating the cycle and hurting himself along with the rest of us.

August 27, 2014 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (10) | TrackBack

Tuesday, August 26, 2014

Two positive reports on positive public health results from marijuana reform and use

My Google news feed with marijuana headlines was topped this morning with these two notable reports about research suggesting both legal reform and usage can have positive public health consequences:

I am strongly trying to resist the impulse to claim that marijuana reform can and will improve many social ills and that marijuana is some kind of magical wonder drug.  Nevertheless, it is hard not to get excited about the results of the research reported above.  Of particular note, the study concerning opiate overdoses, which is available in full here and is titled "Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010," is published in the highly-respected JAMA Internal Medicine journal.

August 26, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Thursday, August 21, 2014

After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?

The-New-Jim-CrowThe question in the title of this post is prompted in part by my own uncertainty concerning the fitting public policy responses to the events in Feguson this month and in part by this potent and provocative new Huffington Post piece by Jelani Hayes headlined "Ending Marijuana Prohibition Must Take a Historical Perspective."  Here are excerpts from the commentary (with links from the original):  

Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control.  Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.

Cannabis prohibition did all three.  The [New York] Times editorial board dedicated an entire article to explaining this phenomenon.  Part 3 of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...

Additionally, business interests play a part in keeping cannabis illegal.  Some pharmaceutical companies, drug-prevention nonprofits, law enforcement agencies, and the private prison industry have an economic interest in criminalization, what is known as the drug control industrial complex. It pays big to help fight the war on drugs, and marijuana prohibition is a crucial facet of that effort. The Nation has recently called these interests "The Real Reason Pot is Still Illegal."

The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.

The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence.  Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities.  Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.

Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done.  She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction.  "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said.  "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year.  And I feel like, here we go again."

Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs.  Therefore, our solution to it can't be either.

We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....

In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression  — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.

Regular readers likely know that I see marijuana and drug sentencing reform efforts as tied to a broader civil rights movement (and not just for people of color). But, especially in the wake of what has transpired this month in Ferguson, I am getting especially drawn to the idea that appropriate public policy response is to connect criminal justice reform efforts to civil rights messages and history as this HuffPo commentary urges.

A few (of many) recent and older related posts (some from Marijuana Law, Policy & Reform):

August 21, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Tuesday, August 19, 2014

Is an end to the modern drug war the only real way to prevent future Fergusons?

The question in the title of this post is prompted by this provocative new commentary by John McWhorter in The New Republic. The piece is headlined "There Is Only One Real Way to Prevent Future Fergusons: End the War on Drugs," and here are excerpts:

At times like this, with the raging protest in Ferguson, an implication hangs in the air that these events are leading somewhere, that things are about change.  The saddest thing, however, is that this is, indeed, a “time like this” — one of many, before and certainly to come.  It is impossible not to conclude that what happened to Michael Brown in Ferguson is now status quo, not a teaching lesson to move us forward....

We don’t know the details yet, but it’s apparent that, in spite of all we went through with [Trayvon] Martin so recently, in a clinch — the mean, messy place where these things always happen — the Ferguson cop Darren Wilson assumed that a big black guy was trouble, serious trouble, and shot him dead.  It’s what happens in that clinch that matters, and we can now see that no amount of articulate protest can cut through such visceral human tendencies as bias and fear....

So, what will really make a difference?  Really, only a continued pullback on the War on Drugs.  Much of what creates the poisonous, vicious-cycle relationship between young black men and the police is that the War on Drugs brings cops into black neighborhoods to patrol for drug possession and sale.  Without that policy — which would include that no one could make a living selling drugs — the entire structure supporting the notion of young black men as criminals would fall apart.  White men with guns would encounter young black men much less often, and meanwhile society would offer young black men less opportunity to drift into embodying the stereotype in the first place.

But that’s the long game.  In the here and now, we are stuck.  Michael Brown was not “it.” The journalists assiduously documenting the events in Ferguson can serve as historians, but not as agents of change.

Recent related post:

August 19, 2014 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, August 09, 2014

Early data from Colorado suggest teenage use of marijuana is down since legalization

I have tended to assume that teenage use of marijuana would likely increase in the wake of legalization in Colorado, but the early data suggest a reduction in teenager use of marijuana since the stuff became legal for adults.  This recent news report, headlined "Pot Use Among Colorado Teens Appears to Drop After Legalization," provides these details:

Marijuana use among Colorado high school students appears to be declining, despite the state’s pioneering voter-approved experiment with legalization. According to preliminary data from the state’s biennial Healthy Kids Colorado Survey, in 2013 - the first full year the drug was legal for adults 21 and older - 20 percent of high school students admitted using pot in the preceding month and 37 percent said they had at some point in their lives.

The survey’s 2011 edition found 22 percent of high school students used the drug in the past month and 39 percent had ever sampled it. It’s unclear if the year-to-year decline represents a statistically significant change, but data from 2009 suggests a multiyear downward trend. That year 25 percent of high school kids said they used pot in the past month and 45 percent said they had ever done so.

The data released Thursday by the Colorado Department of Public Health and Environment also appears to show post-legalization pot use among Colorado teens was lower than the national average....

Supporters of marijuana legalization argue underage use will shrink as states impose strict age limits. Opponents of legalization, meanwhile, fear that declining perceptions of harm associated with the drug will lead to an uptick in teen use. According to the data released Thursday, students surveyed do have a lowered perception of harm - 54 percent perceived a moderate or great risk in using the drug, down from 58 percent in 2011 - but use did not increase.

“Once again, claims that regulating marijuana would leave Colorado in ruins have proven to be unfounded,” Marijuana Policy Project Communication Director Mason Tvert said in a statement. “How many times do marijuana prohibition supporters need to be proven wrong before they stop declaring our marijuana laws are increasing teen use?”

Tvert, co-director of Colorado’s successful Amendment 64 legalization campaign, said “the drop in teen use reflects the fact that state and local authorities have far more control over marijuana than ever before.” He argues “our goal should not be increasing teens’ perception of risk surrounding marijuana. It should be increasing teens’ knowledge of the actual relative harms of marijuana, alcohol, and other substances so that they can make smart decisions."

Foes of legalization haven't thrown in the towel. "No statistician would interpret that as being a decline," Kevin Sabet, co-founder of the anti-legalization group Smart Approaches to Marijuana, says of the 2 percentage point year-to-year drop. Sabet says it will be important to review county-level data when full survey results are released later this year and points out that state-licensed stores were not open in 2013.

August 9, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Sunday, August 03, 2014

Significant AG Holder comments asserting severe rigid sentences are not needed to induce cooperation

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting made headlines mostly due to his expression of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here).  I will discuss AG Holder's nuanced comments on this front in some future posts.  

Before discussing the use of risk assessment instruments in initial sentencing determinations, I first want to recommend that everyone read all of AG Holder's NACDL speech, which is available here, because it includes a number of notable passages addressing a number of notable sentencing topics.  Of particular note, these paragraphs seek to debunk the oft-heard statements that reform of mandatory minimum sentencing provisions could prevent prosecutors from securing needed cooperation from defendants:

[T]he Smart on Crime initiative has led us to revise the Justice Department’s charging policies with regard to mandatory minimum sentences for certain federal, drug-related crimes — so that sentences will be determined based on the facts, the law, and the conduct at issue in each individual case.  This means that the toughest penalties will now be reserved for the most serious criminals.  Over the last few months — with the Department’s urging — the U.S. Sentencing Commission has taken additional steps to codify this approach, amending federal sentencing guidelines for low-level drug trafficking crimes to reduce the average sentence by nearly 18 percent.  Going forward, these new guidelines will impact almost 70 percent of people who are convicted of these offenses. And last month, the Commission voted to allow judges to apply these revised guidelines retroactively in cases where reductions are warranted.

Now, some have suggested that these modest changes might somehow undermine the ability of law enforcement and prosecutors to induce cooperation from defendants in federal drug cases.  But the reality is that nothing could be further from the truth.

Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence.  As veteran prosecutors and defense attorneys surely recall — and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues — sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences.  With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate.  It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions. And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.

Far from impeding the work of federal prosecutors, these sentencing reforms that I have mandated represent the ultimate expression of confidence in their judgment and discretion.  That’s why I’ve called on Congress to expand upon and further institutionalize the changes we’ve put in place — so we can better promote public safety, deterrence, and rehabilitation while saving billions of dollars and reducing our overreliance on incarceration.

August 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, July 30, 2014

Indiana reforms highlight how sentencing laws impact cops as well as courts

This interesting local article from Indiana, headlined "Meth Suppression Unit Encounters Positive, Negative Aspects to Massive Sentencing Overhaul," spotlights some of the ways sentencing reform impacts law enforcement operations and priorities. Here are excerpts:

Indiana's criminal sentencing reform took effect nearly a month ago and police detectives and prosecutors are still trying to take it all in. The overhaul brought sweeping changes for law enforcement officers, especially the Evansville Police Department's Meth Suppression Unit.

During the 2013 session, the General Assembly passed House Enrolled Act 1006 which re-wrote the felony portion of the state's criminal code. The new law expands upon the state's four levels of felonies (Class A-D) and creates six levels of felonies (Level 1-6). The reform was intended to ease prison crowding and give judges more discretion to let low-level offenders serve their time in community correctional programs.

For example, what was once a Class A felony became a Level 1 or Level 2 felony, depending on severity. As part of the reform, offenders would have to serve 75% of their sentences instead of the current 50%. While the reform strengthens the sentences for sex crimes and violent crimes, it lessens the sentences for drug crimes. While it has some positive and negative aspects, the jury is still out on the reform, said Evansville Police Detective Patrick McDonald.

"For me, I've been on the street now for 10 years," Det. McDonald said. "There hasn't been a major overhaul of the criminal code like this. Under the old system, manufacturing [meth] was manufacturing [meth]. It was never able to be enhanced by weight so now we have to look at how we process meth labs and try to get a weight out of that."...

The criminal sentencing overhaul eliminated some enhancement charges the Meth Suppression Unit frequently used, McDonald said. McDonald detailed one such example in which a man previously convicted of meth was allegedly caught trying to buy pseudoephedrine, the key ingredient in meth production. Because that man had already been convicted of a meth-related offense, prosecutors added the enhancement charge which bumped up his sentence by eight years.

Some other enhancement charges have been clarified and more clearly defined, McDonald said. He cited the enhancement charge of dealing drugs within 1000 feet of a park or school. Under the new sentencing guidelines, detectives no longer have to prove children were present; the enhancement charge is applicable when it can be 'reasonably expected' that children are present.

The reform also brought drastic changes to what level felony shall apply to how much narcotics detectives discovered. "What used to be dealing over three grams [the General Assembly] raised that up to be 28 grams," McDonald said. "Three grams is a fairly significant amount, about $300 to $350 worth of meth or cocaine. What we historically considered a 'dealer weight' has been pushed down to minimal prison time."

July 30, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, July 28, 2014

"The Injustice of Marijuana Arrests"

The title of this post is the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here).  This lengthy editorial is authored by Jesse Wegman, and here are excerpts:

America’s four-decade war on drugs is responsible for many casualties, but the criminalization of marijuana has been perhaps the most destructive part of that war. The toll can be measured in dollars — billions of which are thrown away each year in the aggressive enforcement of pointless laws.  It can be measured in years — whether wasted behind bars or stolen from a child who grows up fatherless.  And it can be measured in lives — those damaged if not destroyed by the shockingly harsh consequences that can follow even the most minor offenses.

In October 2010, Bernard Noble, a 45-year-old trucker and father of seven with two previous nonviolent offenses, was stopped on a New Orleans street with a small amount of marijuana in his pocket.  His sentence: more than 13 years. At least he will be released. Jeff Mizanskey, a Missouri man, was arrested in December 1993, for participating (unknowingly, he said) in the purchase of a five-pound brick of marijuana.  Because he had two prior nonviolent marijuana convictions, he was sentenced to life without parole.

Outrageously long sentences are only part of the story.  The hundreds of thousands of people who are arrested each year but do not go to jail also suffer; their arrests stay on their records for years, crippling their prospects for jobs, loans, housing and benefits. These are disproportionately people of color, with marijuana criminalization hitting black communities the hardest.

Meanwhile, police departments that presumably have far more important things to do waste an enormous amount of time and taxpayer money chasing a drug that two states have already legalized and that a majority of Americans believe should be legal everywhere....

Nationwide, ... [f]rom 2001 to 2010, the police made more than 8.2 million marijuana arrests; almost nine in 10 were for possession alone.  In 2011, there were more arrests for marijuana possession than for all violent crimes put together.

The costs of this national obsession, in both money and time, are astonishing. Each year, enforcing laws on possession costs more than $3.6 billion, according to the American Civil Liberties Union. It can take a police officer many hours to arrest and book a suspect.  That person will often spend a night or more in the local jail, and be in court multiple times to resolve the case.  The public-safety payoff for all this effort is meager at best: According to a 2012 Human Rights Watch report that tracked 30,000 New Yorkers with no prior convictions when they were arrested for marijuana possession, 90 percent had no subsequent felony convictions. Only 3.1 percent committed a violent offense.

The strategy is also largely futile.  After three decades, criminalization has not affected general usage; about 30 million Americans use marijuana every year.  Meanwhile, police forces across the country are strapped for cash, and the more resources they devote to enforcing marijuana laws, the less they have to go after serious, violent crime. According to F.B.I. data, more than half of all violent crimes nationwide, and four in five property crimes, went unsolved in 2012.

The sheer volume of law enforcement resources devoted to marijuana is bad enough. What makes the situation far worse is racial disparity.  Whites and blacks use marijuana at roughly the same rates; on average, however, blacks are 3.7 times more likely than whites to be arrested for possession, according to a comprehensive 2013 report by the A.C.L.U.

While the number of people behind bars solely for possessing or selling marijuana seems relatively small — 20,000 to 30,000 by the most recent estimates, or roughly 1 percent of America’s 2.4 million inmates — that means nothing to people, like Jeff Mizanskey, who are serving breathtakingly long terms because their records contained minor previous offenses....

Even if a person never goes to prison, the conviction itself is the tip of the iceberg. In a majority of states, marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life. A misdemeanor conviction can lead to, among many other things, the revocation of a professional license; the suspension of a driver’s license; the inability to get insurance, a mortgage or other bank loans; the denial of access to public housing; and the loss of student financial aid....

As pioneers in legalization, [Colorado and Washington] should set a further example by providing relief to people convicted of crimes that are no longer crimes, including overturning convictions.  A recent ruling by a Colorado appeals court overturned two 2011 convictions because of the changed law, and the state’s Legislature has enacted laws in the last two years to give courts more power to seal records of drug convictions and to make it easier for defendants to get jobs and housing after a conviction.  These are both important steps into an uncharted future.

July 28, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, July 24, 2014

"There’s little evidence that fewer prisoners means more crime"

The title of this post is the headline of this notable new posting by Emily Badger now up at the Washington Post Wonkblog. Here are excerpts:

Of all of the notions that have motivated the decades-long rise of incarceration in the United States, this is probably the most basic: When we put people behind bars, they can't commit crime. The implied corollary: If we let them out, they will.

By this thinking, our streets are safer the more people we lock up and the longer we keep them there. This logic suggests that there would be serious public-safety costs to reducing prison populations, a policy in the news again after the U.S. Sentencing Commission unanimously voted last Friday to retroactively extend new, lighter drug sentencing guidelines to about 46,000 offenders currently serving for federal drug crimes. As the National Association of Assistant U.S. Attorneys warned, opposing the move, "tough sentencing laws . . . led to safer communities, which are now threatened."

Crime trends in a few states that have significantly reduced their prison populations, though, contradict this fear. [A] recent decline in state prison populations in New York and New Jersey, [as noted by] a new report by the Sentencing Project, [has not resulted in a crime surge]....

It's important to note that crime has been falling all over the country over this same time, for reasons that are not entirely understood (and, no, not entirely explained by the rise of incarceration). But the Sentencing Project points out that declining violent crime rates in New York and New Jersey have actually outpaced the national trend, even as these states have reduced their prison populations through changing law enforcement and sentencing policies.

We certainly can't take these three charts and conclude that reducing prison populations reduces crime. But these trends do make it harder to argue the opposite — particularly in the most heavily incarcerated country in the world.

I am not sure which of the many data-driven publications by The Sentencing Project served as the basis for this latest Workblog posting. But I am sure, as evidenced by these posts from the last few weeks, that sentencing fans ought to make a habit of checking out Wonkblog regularly:

UPDATE:  I now realize that the recent Sentencing Project publication reference in this post is the basis for the Wonkblog discussion.

July 24, 2014 in Data on sentencing, Drug Offense Sentencing, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Friday, July 18, 2014

USSC votes for full (though slightly delayed) retroactivity of new reduced drug guidelines

I just received this early report via a credible source as to what the US Sentencing Commission did this afternoon on the issue of making its new lower guidelines retroactive:

The Commission just voted unanimously to make the "drugs minus 2" amendment retroactive with a single limitation -- no order reducing a sentence can take effect until Nov. 1, 2015.  This is later than the Judicial Conference recommended (they proposed that it effect in May 2015 to give courts and probation time to prepare)....

The Commission predicts that more than 46,000 will be eligible to seek a reduction.  Part of the reason for the delayed effective date is to make sure each inmate is released with a re-entry plan and the opportunity for transitional steps such as halfway houses or home confinement.

UPDATE:  Here is a link to the USSC's official press release about its vote, which starts this way:

The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.

The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward.  Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015.  Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.

“This amendment received unanimous support from Commissioners because it is a measured approach,” said Judge Patti B. Saris, chair of the Commission. “It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.

ANOTHER UPDATE: Here is a link to the official statement in response to this vote from AG Eric Holder, which runs this single paragraph:

“The department looks forward to implementing this plan to reduce sentences for certain incarcerated individuals. We have been in ongoing discussions with the Commission during its deliberations on this issue, and conveyed the department's support for this balanced approach. In the interest of fairness, it makes sense to apply changes to the sentencing guidelines retroactively, and the idea of a one-year implementation delay will adequately address public safety concerns by ensuring that judges have adequate time to consider whether an eligible individual is an appropriate candidate for a reduced sentence. At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system."

July 18, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, July 17, 2014

Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18

As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:

It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system).  Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote.  The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."

Some recent related posts on reduced drug guideline retroactivity:

July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, July 14, 2014

Are federal drug sentences for mules now too short?

Drugs and dogsThe question in the title of this post is prompted by this notable and fascinating new article in the New York Times headlined "Second Thoughts on Lighter Sentences for Drug Smugglers." Here are excerpts:

For years, a steady parade of drug smugglers have tried all sorts of ways to ferry contraband into the United States through Kennedy International Airport in Queens, posing a challenge not only to Customs and Border Protection officers, but also to federal prosecutors.

To avoid clogging up the court, the United States attorney’s office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences.  The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses — which require prison terms of five years and higher in these smuggling cases — were too harsh on defendants who were typically nonviolent and disadvantaged.

But in recent months, changes in drug sentencing have served to further lower punishments for these couriers.  A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.

The changes are raising questions of whether the pendulum has swung too far.  Some prosecutors say that couriers have little to no incentive to cooperate anymore.  Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment.  And judges who once denounced the harsh sentencing guidelines are now having second thoughts....

The debate over what constitutes a fair sentence for drug crimes has persisted for decades.  Critics — many of them judges in this court — have said that sentencing guidelines and mandatory minimum punishments had become hugely problematic. Nonviolent drug offenders, like couriers or people selling marijuana on the street, could face longer guideline sentences than an underground gun dealer.  And until recently, possession of five grams of crack warranted a minimum five-year sentence.  To get the same sentence for powdered cocaine possession, 500 grams would be required.

Various reforms have been instituted to address the inequities in sentencing.  In 1994, a “safety valve” provision allowed nonviolent first offenders on drugs — which describes most couriers — to avoid mandatory minimums if they admitted to all prior criminal conduct.  And in 2010, Congress passed legislation toward balancing the crack versus cocaine disparity....

In August, the United States attorney general, Eric H. Holder Jr., ordered prosecutors nationwide to charge couriers and other low-level drug offenders who met certain criteria in a way that did not result in mandatory-minimum sentences.  (Guideline sentences must still be considered, but they are not mandatory.)

Then, in April, the United States Sentencing Commission voted to reduce sentencing guidelines for drug crimes by two points, or several months.  The reduced guidelines go into effect in November, pending congressional approval, but prosecutors in many districts have agreed to apply them now.

The changes made things more difficult in Brooklyn, where prosecutors still wanted to give low-level couriers an incentive to avoid trials and to assist in prosecutions against larger drug distributors. Believing they had to further sweeten the deal, prosecutors agreed to give an additional four points off those reduced sentences for couriers who agreed to cooperate.

As a result, drug-courier defendants can now face sentencing guidelines that suggest no prison time.

My first reaction to this piece is to suggest that it's a nice change of pace for federal judges to now view at least some federal sentencing guidelines to be too lenient and that any problems this creates can and should be addressed through judicial discretion to sentence above the guidelines, case-by-case, as needed and appropriate.  But I imagine this viewpoint is not very satisfying for federal prosecutors and investigators who depend on the threat of severe sentences to get mules to cooperate to their satisfaction.

For additional intriguing and diverse reactions to these intriguing new drug sentencing realities, check out these posts from other informed bloggers:

July 14, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Wednesday, July 09, 2014

Following the money behind sustaining pot prohibition

Nat potThe Nation has this fascinating new investigative report with a  headline and subheadline that highlights its themes: "The Real Reason Pot Is Still Illegal: Opponents of marijuana-law reform insist that legalization is dangerous — but the biggest threat is to their own bottom line." Here are excerpts from the start of a lengthy article:

Taking the stage to rousing applause last February, [Patrick] Kennedy joined more than 2,000 opponents of marijuana legalization a few miles south of Washington, DC, at the annual convention of the Community Anti-Drug Coalition of America (CADCA), one of the largest such organizations in the country....

Given that CADCA is dedicated to protecting society from dangerous drugs, the event that day had a curious sponsor: Purdue Pharma, the manufacturer of Oxy-Contin, the highly addictive painkiller that nearly ruined Kennedy’s congressional career and has been linked to thousands of overdose deaths nationwide.

Prescription opioids, a line of pain-relieving medications derived from the opium poppy or produced synthetically, are the most dangerous drugs abused in America, with more than 16,000 deaths annually linked to opioid addiction and overdose. The Centers for Disease Control and Prevention report that more Americans now die from painkillers than from heroin and cocaine combined. The recent uptick in heroin use around the country has been closely linked to the availability of prescription opioids, which give their users a similar high and can trigger a heroin craving in recovering addicts....

People in the United States, a country in which painkillers are routinely overprescribed, now consume more than 84 percent of the entire worldwide supply of oxycodone and almost 100 percent of hydrocodone opioids. In Kentucky, to take just one example, about one in fourteen people is misusing prescription painkillers, and nearly 1,000 Kentucky residents are dying every year.

So it’s more than a little odd that CADCA and the other groups leading the fight against relaxing marijuana laws, including the Partnership for Drug-Free Kids (formerly the Partnership for a Drug-Free America), derive a significant portion of their budget from opioid manufacturers and other pharmaceutical companies. According to critics, this funding has shaped the organization’s policy goals: CADCA takes a softer approach toward prescription-drug abuse, limiting its advocacy to a call for more educational programs, and has failed to join the efforts to change prescription guidelines in order to curb abuse. In contrast, CADCA and the Partnership for Drug-Free Kids have adopted a hard-line approach to marijuana, opposing even limited legalization and supporting increased police powers.

A close look at the broader political coalition lobbying against marijuana-law reform reveals many such conflicts of interest. In fact, the CADCA event was attended by representatives of a familiar confederation of anti-pot interests, many of whom have a financial stake in the status quo, including law enforcement agencies, pharmaceutical firms, and nonprofits funded by federal drug-prevention grants....

The opponents of marijuana-law reform argue that such measures pose significant dangers, from increased crime and juvenile delinquency to addiction and death. But legalization’s biggest threat is to the bottom line of these same special interests, which reap significant monetary advantages from pot prohibition that are rarely acknowledged in the public debate....

[B]oth CADCA and the Partnership for Drug-Free Kids are heavily reliant on a combination of federal drug-prevention education grants and funding from pharmaceutical companies. Founded in 1992, CADCA has lobbied aggressively for a range of federal grants for groups dedicated to the “war on drugs.”  The Drug-Free Communities Act of 1997, a program directed by the White House Office of National Drug Control Policy, was created through CADCA’s advocacy.  That law now allocates over $90 million a year to community organizations dedicated to reducing drug abuse.  Records show that CADCA has received more than $2.5 million in annual federal funding in recent years.  The former Partnership for a Drug-Free America, founded in 1985 and best known for its dramatic “This is your brain on drugs” public service announcements, has received similarly hefty taxpayer support while advocating for increased anti-drug grant programs.

The Nation obtained a confidential financial disclosure from the Partnership for Drug-Free Kids showing that the group’s largest donors include Purdue Pharma, the manufacturer of OxyContin, and Abbott Laboratories, maker of the opioid Vicodin. CADCA also counts Purdue Pharma as a major supporter, as well as Alkermes, the maker of a powerful and extremely controversial new painkiller called Zohydrol.  The drug, which was released to the public in March, has sparked a nationwide protest, since Zohydrol is reportedly ten times stronger than OxyContin. Janssen Pharmaceutical, a Johnson & Johnson subsidiary that produces the painkiller Nucynta, and Pfizer, which manufactures several opioid products, are also CADCA sponsors.  For corporate donors, CADCA offers a raft of partnership opportunities, including authorized use of the “CADCA logo for your company’s marketing, website, and advertising materials, etc.”

July 9, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, July 08, 2014

Even as its prospects dim, Smarter Sentencing Act is impacting federal sentencing proceedings

The lack of serious congressional action on the Smarter Sentencing Act now nearly six months after the SSA passed through the Senate Judiciary Committee with bipartisan support (basic here) has led me to conclude that the prospect of the SSA's enactment into law this year is now quite dim. Nevertheless, as highlighted by this local story from Maine, the SSA is still impacting the work of federal sentencing courts. The article is headlined "Monroe marijuana farm patriarch sentence postponed for Smarter Sentencing Act passage," and here are the basics:

A federal judge postponed the sentencing of a Waldo County man found guilty in November of operating a large-scale, indoor marijuana farm with his family to allow for the possible passage of the Smarter Sentencing Act, which could decrease his sentence. James F. Ford, 58, of Monroe was convicted by a jury in November of one count each of conspiracy to manufacture 100 or more marijuana plants, manufacturing 100 or more marijuana plants, maintaining a drug-involved place and being a felon in possession of a firearm.

The Smarter Sentencing Act, introduced by U.S. Sens. Mike Lee, R-Utah, and Richard Durbin, D-Illinois, is a bill making its way through the Senate that would reduce mandatory minimum sentences for some nonviolent drug offenders and allow those incarcerated to apply for sentence reductions, among other changes to mandatory federal sentencing laws.

“The Smarter Sentencing Act may have a drastic effect on Mr. Ford’s sentence,” states the motion filed by defense attorney Hunter Tzovarras of Bangor. ”In the interest of fairness and justice, it is respectfully requested the court use its discretion and continue the sentencing until November 2014.”...

Assistant U.S. Attorney Andrew McCormack objected to the defense motion, saying the bill might not provide the desired reductions and there is a possibility the delay could mean the government could lose the right to seize the Fords’ home, where the marijuana growing took place. “It is pure conjecture at this time as to the final form, if any, the Smarter Sentencing Act will take,” McCormack said in his opposing motion. “Even if the Act does eventually pass, it is almost certain to be in a form different than the current bill."...

U.S. District Judge John Woodcock Jr. agreed with Tzovarras and postponed Ford’s sentencing until Nov. 21, 2014. Ford, who was convicted of growing marijuana in Massachusetts, moved the family pot-growing operation from Massachusetts to Monroe after he completed a sentence of probation in the Bay State, McCormack told the jury in his closing argument in Ford’s trial.

Due to the Massachusetts conviction, Ford faces a mandatory minimum of 10 years and maximum of life in prison and a fine of up to $8 million on the conspiracy charge under the current federal sentencing guidelines....

Members of the Ford family were arrested in November 2011 when the Maine Drug Enforcement Agency raided the family’s Swan Lake Avenue garage, and found hundreds of thousands of dollars worth of marijuana. During the raid, police seized more than 300 marijuana plants in various stages of growth, 10 pounds of processed marijuana and two semiautomatic assault weapons. Tzovarras, in his Monday motion, states the Smarter Sentencing Act, if passed, would reduce mandatory minimum sentences for manufacturing, distribution, dispensing, possession and importing or exporting specific controlled substances. “If the court determines a mandatory minimum penalty applies to Mr. Ford, that mandatory [minimum] penalty would be reduced by half, from 10 to 5 years,” the defense attorney states.

July 8, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Thursday, July 03, 2014

Fascinating suggestion of "Mitt Romney for drug czar"

The always brilliant and provocative lawprof Mark Osler has this brilliant and provocative new commentary in the Detroit News headlined "Mitt Romney for drug czar." Here is how it starts:

In a series of public appearances, Detroit native Mitt Romney has planted the idea that he might run for president again in 2016. He should resist the idea; that day has passed.

Instead, Romney should apply his experience and passion to public service in a different way: The Mitt Romney who founded Bain Capital and saved the Utah Winter Olympics should be Drug Czar, and use his financial acumen to destroy the narcotics trade without mass incarceration.

In the run-up to the 2012 presidential election, Mitt Romney was celebrated (by Republicans) and eviscerated (by Democrats) for his vocation: building up and tearing down businesses. Regardless of how one views the social utility of this enterprise, no one can dispute that Romney is a smart, passionate, well-educated man who loves public service and was very good at what he did while working for Bain Capital.

Romney’s availability matches up with a special moment for narcotics policy. There is a broad right-left consensus that the stale tactics of the war on drugs failed miserably. It wasted billions of dollars in taxpayer money while failing to limit drug use. Meanwhile, millions of Americans went to prison, and a disproportionate number of them were black thanks to harsh new laws focused on crack cocaine. There was something to offend everyone.

I like this idea sooooo much, I really wonder if it could possibly get any legs inside the Beltway. On all modern drug crime and punishment issues — ranging from marijuana reform in the states to the surge of addiction to opiods and heroin to the reduction of federal drug sentences — the country really needs to widely respected "numbers guy" who could bring a clear-headed business perspective to analyzing the pros and cons of various suggested policy initiatives.  I would trust Mitt Romney to be that guy as much, if not more, than just about anyone else President Obama might place in this role.  

July 3, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, June 30, 2014

Could part of Hobby Lobby "havoc" include new RFRA challenges to federal drug laws and their regulatory enforcement?

I am not an expert on religious freedom doctrines or on interpretations of Religious Freedom Restoration Act of 1993 (RFRA). But my cursory understanding of the basics of the Supreme Court's big ruling today in Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (S. Ct. June 30, 2014) (available here) is that SCOTUS has now given RFRA a (much?) broader reach and interpretation than the First Amendment's Free Exercise Clause and has concluded that a corporation must have its sincere religious objections to a health-care regulation better accommodated for that regulation to comply wit RFRA. Not surprisingly, the Justices in dissent express concern about this ruling, and I especially was struck by these passages from the start of Justice Ginsburg's dissent:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.”....

In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith.... Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

Legal scholars and pundits will no doubt be picking apart the Hobby Lobby ruling with a view toward its political, policy and practical impact with respect to any number of federal civil laws.  But, as the question in the title of this post suggests, I am already wondering if the Hobby Lobby ruling could end up having an impact on federal criminal laws, in particular drug laws.

Notably, in his Hobby Lobby concurrence, Justice Kennedy highlights that the "American community is today ... a rich mosaic of religious faiths," and says religious freedom must be understood to mean "the right to express [religious] beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community."  I am pretty sure there are more than a few religious groups (some well-established, other not-so-much) that sincerely claim that certain types of drug use plays a role in their members' "self-definition in the political, civic, and economic life of our larger community." In the wake of Hobby Lobby's ruling that sincere religious beliefs now thanks to RFRA justify an opt-out from general laws, I wonder if more folks might have more opportunities to press claims in federal court that their religious beliefs must allow opt outs from federal criminal drug laws.

June 30, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, June 24, 2014

"Forget Sentencing Equality: Moving from the 'Cracked' Cocaine Debate Toward Particular Purpose Sentencing"

The title of this post is the title of this interesting paper authored by Jelani Jefferson Exum now available via SSRN. Here is the abstract:

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal.  This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment.

Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular offense.  Particular Purpose Sentencing also requires that, once sentences are matched to a specific purpose, the outcomes of those sentences be studied to ensure that they are fulfilling their particular sentencing purpose.

This Article analyzes the legislative and judicial limits of basing sentencing reform on racial equality goals, and explores how implementing Particular Purpose Sentencing has the potential to result in more effective and racially equal consequences.  Though this Article introduces Particular Purpose Sentencing using the drug sentencing context, this new sentencing theory can be applied to achieve fairer, more successful sentencing for all offenses.

June 24, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:

Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.

Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.

Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....

So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.

Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.

But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.

The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.

Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.

Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.

June 22, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy. But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

Cross-posted at Marijuana Law, Policy and Reform

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, June 19, 2014

Notable AG Holder speech on modern approach to modern drug war

Attorney General Holder delivered this speech today at a government summit on heroin and prescription drugs use and abuse, and criminal justice fans might be especially interested in these excerpts:

Between 2006 and 2010 -- across America -- heroin deaths increased by 45 percent. That’s a shocking statistic, but it’s only one of many clear indications that we’re up against an urgent public safety and public health crisis -- one that affects Americans in every state, in every region, and from every background and walk of life.  We’ve learned from scientific studies, treatment providers, victims, and investigations that the cycle of heroin abuse commonly begins with prescription opioid abuse.  And this can make the problem exceedingly difficult to track and to overcome....

Since the beginning of this Administration, with DEA as our lead agency, the Justice Department has adopted a sweeping strategy to prevent pharmaceutical controlled substances from getting into the hands of non-medical users....

We also have stepped up our investigatory efforts, opening more than 4,500 heroin-related investigations since 2011, and increasing the amount of heroin seized along America’s southwest border between 2008 and 2013 by 320 percent.  Of course, like you, I recognize that we cannot solve this problem through enforcement alone.  And we will never be able to arrest or incarcerate our way to becoming a safer nation.

This is why education, prevention, and treatment -- along with vigorous enforcement -- must all be significant components of any comprehensive solution.  Over the past few years, the DEA and others within the Department of Justice have stepped forward to help educate pharmacists, doctors, and other health practitioners in the identification and prevention of controlled substance diversion during the healthcare delivery process....

On the national level, we’re moving even more broadly -- under the Smart on Crime initiative I announced last August -- to put in place a range of targeted, systemic reforms to ensure that 21st century challenges can be met with 21st century solutions.

This groundbreaking new effort relies upon proven, evidence-based strategies to achieve better outcomes throughout the federal criminal justice system -- and particularly with regard to nonviolent, drug-related crimes.  These policy changes are predicated on the notion that our work must be informed, and our criminal justice system continually strengthened, by the most effective and efficient strategies available.

We’re also strengthening diversion programs like drug courts, veterans courts, and community service initiatives -- so we can provide alternatives to incarceration for some people and offer treatment and rehabilitation to those who need it.  Nationwide, the Justice Department is supporting more than 2,600 specialty courts that connect over 120,000 people convicted of drug-related offenses with the services they need to avoid future drug use.

And we’re striving to improve and reinforce reentry programs and initiatives from coast to coast – so we can enable formerly incarcerated individuals to return to their communities better prepared to contribute, and to lead, as full and productive members of society.

Let me be clear: we will never waver in our commitment to act aggressively to keep America’s streets safe and our children free from drug addiction and abuse.  And we will never stop being tough on crime and the choices that breed it.  But, like you, we also recognize that we must be smart, efficient, and effective as we strive to disrupt and diminish the scourge of addiction -- along with the underlying conditions that trap too many individuals in a vicious cycle of drugs, criminality, and incarceration....

At the end of the day, the most important work we do is invariably the work that takes place within our own communities – not simply as professionals, but as mentors, advocates, and counselors; as parents, neighbors, and friends.  We need to make sure our kids live in neighborhoods where adults can reach out to them -- where moms and dads, teachers and faith leaders, little league coaches and Scoutmasters can be trusted and positive influences in young lives.  And this work must be embraced by whole communities – because it is only by standing together, through collective action and comprehensive effort, that we’ll be able to make the difference we seek.

June 19, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 15, 2014

"Lawmakers should be parsimonious — not sanctimonious — on drug sentencing"

The title of this post is the headline of this new commentary at The Hill authored by Jamie Fellner.  Here are excerpts:

Hopes are high that the U.S. Congress will do the right thing this year and reform notoriously harsh federal drug sentencing laws that have crammed U.S. prisons with small-time offenders.

The bipartisan Smarter Sentencing Act, approved by the Senate judiciary committee and now awaiting debate in the full Senate, would reduce federal mandatory minimum sentences for certain drug offenders, increase the number who can avoid them altogether, and permit prisoners serving time under outdated crack-cocaine sentencing laws to seek lower sentences. Passage would begin to reverse a decades-long trend that's seen "too many Americans go to too many prisons for far too long and for no good law enforcement reason," as Attorney General Eric Holder put it earlier this year.

Although legislators may not realize it, reduction of unduly severe sentences for drug offenders will help bring federal sentencing back in line with the long-overlooked principle of "parsimony." In the criminal justice context, parsimony dictates that sentences should be no greater than necessary to serve the legitimate goals of punishment, namely, retribution for past crimes, deterrence of future ones, and rehabilitation of the offender.

Congress once recognized the importance of parsimony. In the Sentencing Reform Act of 1984, it instructed federal judges to impose sentences that were “sufficient, but not greater than necessary” to advance the purposes of punishment. But starting in 1986, against a backdrop of social and economic turmoil, racial tension, and the advent of crack cocaine, Congress enacted mandatory minimum drug sentencing laws with stunning disregard for whether they would yield needlessly harsh sentences -- which they invariably did for the low-level offenders who made up the bulk of those receiving them....

Opponents of the Smarter Sentencing Act, including some current and retired federal prosecutors, insist — without evidence – that the mandatory drug sentences are necessary to protect public safety. They also claim — and here the evidence is on their side — that the threat of high mandatory sentences helps convince defendants to plead guilty and cooperate with the government in exchange for lesser punishments. Because judges have no choice but to impose the mandatory minimums triggered by the charges prosecutors file, prosecutors can make good on the threat of higher sentences for those defendants who insist on going to trial: their sentences are on average three times longer than for those who plead. Not surprisingly, ninety-seven percent of drug defendants choose to plead guilty. Opponents of drug law reform seem to forget — or don't care — that the purposes of punishment do not include bludgeoning defendants into pleading.

Each year, hopes for federal drug sentencing reform are dashed by legislative inertia and a few powerful legislators who cling to outdated “tough on crime” notions. Perhaps this year will be different. A growing number of lawmakers, Republicans and Democrats, realize that lengthy mandatory minimum drug sentences are ineffective, wasteful, and expensive. And though few may use the term parsimony, many have come to understand that unnecessarily harsh sentences make a mockery of justice.

June 15, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, June 14, 2014

Notable indication that "smart on crime" sentencing reform in West Virginia is paying dividends

StsealAs highlighted by this local article, headlined "Governor: Justice Reinvestment Act drops W.Va. jail population by 5%," it appears that another state is having significant success with data-driven "smart-on-crime" sentencing and corrections reforms. Here are the encouraging details:

Although in effect for slightly more than a year, legislation to reduce prison overcrowding by reducing recidivism and substance abuse is having a positive impact, Gov. Earl Ray Tomblin said during an event Thursday in Washington, D.C.

“Since I signed West Virginia’s Justice Reinvestment Act, we have had a 5 percent reduction in our prison population,” Tomblin said. “In April 2013, we had nearly 7,100 prisoners in our state. Last Thursday, that figure was down to 6,743. We have reduced overcrowding at our regional jail facilities by nearly 50 percent.”

The legislation was enacted in May 2013, after a yearlong study coordinated by the Council of State Governments’ Justice Center, which recommended reducing prison overcrowding with accelerated probation and parole for nonviolent offenders, and better community-based resources for parolees, including substance-abuse treatment programs.

Tomblin told the Washington CSG event that, in April 2013, West Virginia’s corrections system was 1,746 inmates over capacity, a figure that has now dropped to 885. “Today, we have more than 1,000 fewer people in our prisons than what was projected just a few years ago,” Tomblin said. “Without these changes, we expected to have more than 7,800 inmates in West Virginia prisons, compared to today’s total of 6,743.”

Since the passage of the legislation, Tomblin said, the state has continued efforts to reduce re-offense rates with new workforce training programs, assistance in helping parolees find appropriate housing and efforts to ensure access to community-based substance-abuse treatment for those released from prison, funded through Medicaid expansion....

The West Virginia Democrat was joined at the event by Republican Pennsylvania Gov. Tom Corbett, who has overseen similar successes with prison-reform programs in the Keystone State. Corbett noted that, in the 1990s, Pennsylvania was building a new prison nearly every year, as mandatory sentencing laws were causing the state’s inmate population to soar.

Michael Thompson, director of the CSG Justice Center, noted that the national dialogue has changed from a partisan debate over which party could be tougher on crime to a bipartisan effort to be smart on crime, a theme echoed by Tomblin. “I hope other states will consider the justice reinvestment model to take a “smart on crime” approach to prison overcrowding and public safety,” he said.

June 14, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 12, 2014

Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines

As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.

Federal public defender Sarah Gannett had this to say:

I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal.  Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.

There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety.  At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions).  Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation.  Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal.  Similar arguments can be made about the enhancements the DOJ proposes as limiting.

Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday.  You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website.  Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).

Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized.  In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns.  The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases.  This approach is more principled than the limitations suggested by the Department.  It is discussed in the CLC's statement, which also was posted.  (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload.  See our statement at pp. 9-13, 14-15.)

Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.

Former US Pardon Attorney Margaret Colgate Love had this to say:

I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it.  I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.

Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise".  Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above.  Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.

It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them.  Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies.  Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.

Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum.  It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.

If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more.  It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.

I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.”  Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.

I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive.  I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.

Some recent related posts:

June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, June 11, 2014

Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform

Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events.  Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:

The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics.  Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues.  Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment."  In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.

June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Tuesday, June 10, 2014

DOJ advocates for "limited retroactivity of the pending drug guideline amendment"

As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board.  And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.  

As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines.  Here are the basics of the compromise advocated by DOJ via its submitted testimony:

After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....

Assessing whether the amendment should be applied retroactively requires balancing several factors.  The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders.  While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....

Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....

Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.

Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.

Some recent related posts:

June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Monday, June 09, 2014

Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity

As reported in this official notice, a public hearing of the United States Sentencing Commission is scheduled for Tuesday, June 10, 2014, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Amendment 782."  That Amendment, in short form, reduces the guidelines applicable to drug trafficking offenses by two levels in most settings.  And, as set forth in this detailed USSC staff analysis, as many as "51,141 offenders sentenced between October 1, 1991 and October 31, 2014, would be eligible to seek a reduction in their current sentence if the Commission were to make the 2014 drug guidelines amendment retroactive.

The hearing agenda and the list of the 16 witnesses scheduled now to testify at this hearing is available here. I am pretty confident that most of these witnesses will advocate that the new drug guidelines be made retroactive, but I am not entirely certain about what positions will be advocated by the Department of Justice and some of the law enforcement witnesses. In addition, advocates on both sides likely will articulate in different ways with distinct emphasis why they think retroactivity for these new reduced drug guidelines would be a good or bad idea.

I am hopeful that by this time tomorrow the written testimony to be submitted by the witnesses with be linked on the USSC's website.  In the meantime, I will be re-reading  this detailed USSC staff analysis in order to have a better understanding of the 50,000+ federal prisoners whose fates could be impacted by the retroactivity decision.

June 9, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, June 04, 2014

Over 1000 faith leaders sign letter in support of Smarter Sentencing Act

As highlighted by this article, over "1,100 clergy and faith leaders urged Congress to pass legislation reducing federal mandatory minimum sentences for drug offenses in a June 3 letter to party leaders in the House and Senate."  Here is more about the prominent voices joining the chorus advocating for federal sentencing reform:

A total of 1,129 signers asked Senate Majority Leader Harry Reed (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.), House Speaker John Boehner (R-Ohio) and House Minority Leader Nancy Pelosi (D-Calif.) to support the Smarter Sentencing Act, a bipartisan measure that passed the Senate Judiciary Committee in January. The faith leaders said tough sentencing laws passed in the 1980s “war on drugs” disproportionately affect minorities....

“For too long, Congress has ignored the consequences of the harsh sentencing policies it approved during the 1980s and the disproportionate harm it has caused people of color and those convicted of low-level offenses,” the letter said. “The Smarter Sentencing Act is a step towards addressing racial injustice as well as reducing mass incarceration that characterizes our current justice system.”

Roy Medley, general secretary of American Baptist Churches USA, was a lead signer for the letter coordinated by the Faith in Action Criminal Justice Reform Working Group, a coalition of 43 faith organizations chaired by the United Methodist General Board of Church & Society.

June 4, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, June 03, 2014

Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"

This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:

In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent.  As of now, the change will apply only to defendants who are sentenced after November 1, 2014.  But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.

Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences.  That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes.  But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels.  We incarcerated approximately 25,000 people in federal prisons in 1980.  By 2013, that number had risen to over 219,000.  As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....

Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation.  Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....

Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years.  In the universe of criminal justice, 38 is old.  Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..."  These older offenders should have a low risk of recidivism generally.  And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.

Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas.  True, Texas is big and populous, but it's also punitive.  The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent.  Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.

The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction.  But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.

I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.

That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.

My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors.  Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined.  These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war.  Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.

Some various somewhat recent related posts:

June 3, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Monday, June 02, 2014

"After 5 Months of Sales, Colorado Sees the Downside of a Legal High"

The title of this post is the headline of this lengthy recent article appearing in the New York Times.  As the headline suggests, the article documents glass-half-empty data and perspectives on Colorado's on-going experiment with marijuana legalization.  Here are excerpts:

Five months after Colorado became the first state to allow recreational marijuana sales, the battle over legalization is still raging. Law enforcement officers in Colorado and neighboring states, emergency room doctors and legalization opponents increasingly are highlighting a series of recent problems as cautionary lessons for other states flirting with loosening marijuana laws.

There is the Denver man who, hours after buying a package of marijuana-infused Karma Kandy from one of Colorado’s new recreational marijuana shops, began raving about the end of the world and then pulled a handgun from the family safe and killed his wife, the authorities say.  Some hospital officials say they are treating growing numbers of children and adults sickened by potent doses of edible marijuana.  Sheriffs in neighboring states complain about stoned drivers streaming out of Colorado and through their towns.

“I think, by any measure, the experience of Colorado has not been a good one unless you’re in the marijuana business,” said Kevin A. Sabet, executive director of Smart Approaches to Marijuana, which opposes legalization.  “We’ve seen lives damaged. We’ve seen deaths directly attributed to marijuana legalization. We’ve seen marijuana slipping through Colorado’s borders. We’ve seen marijuana getting into the hands of kids.”

Despite such anecdotes, there is scant hard data.  Because of the lag in reporting many health statistics, it may take years to know legal marijuana’s effect — if any — on teenage drug use, school expulsions or the number of fatal car crashes. It was only in January, for example, that the Colorado State Patrol began tracking the number of people pulled over for driving while stoned. Since then, marijuana-impaired drivers have made up about 1.5 percent of all citations for driving under the influence of drugs or alcohol.

Proponents of legalization argue that the critics s are cherry-picking anecdotes to tarnish a young industry that has been flourishing under intense scrutiny.  The vast majority of the state’s medical and recreational marijuana stores are living up to stringent state rules, they say.  The stores have sold marijuana to hundreds of thousands of customers without incident.  The industry has generated $12.6 million in taxes and fees so far, though the revenues have not matched some early projections.

Marijuana supporters note that violent crimes in Denver — where the bulk of Colorado’s pot retailers are — are down so far this year. The number of robberies from January through April fell by 4.8 percent from the same time in 2013, and assaults were down by 3.7 percent. Over all, crime in Denver is down by about 10 percent, though it is impossible to say whether changes to marijuana laws played any role in that decline....

The argument is being waged with fervor because both sides say Colorado’s successes and failures with regulating marijuana will shape perceptions of legalization for voters considering similar measures in other states and for leery federal law enforcement officials.  After the 2012 legalization votes in Colorado and Washington State — where recreational sales are expected to begin this summer — Justice Department officials gave the states a cautious green light. But they warned that they might intervene if marijuana ended up fueling violence or drug trafficking, or flowing across state lines or into the hands of children.

Marijuana opponents like Thomas J. Gorman of the Rocky Mountain High Intensity Drug Trafficking Area program, which helps law enforcement, say Colorado is already falling short of those standards.  “In any other state if they were making as much money and growing as much dope, they’d be taken out by the feds,” Mr. Gorman said.

Few agree on how much legally purchased marijuana is being secreted out of Colorado.  Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase in Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase inseizures of marijuana that could be traced to Colorado. But according to the Kansas Highway Patrol, total marijuana seizures fell to 1,090 pounds from 2,790 pounds during the first four months of the year, a 61 percent decline.

Some sheriffs and police chiefs along Colorado’s borders say they have noticed little change. But in Colby, Kan., which sits along an interstate highway running west to Colorado, Police Chief Ron Alexander said charges for sale, distribution or possession related to marijuana were rising fast.  This year, he tallied 20 such cases through May 23. Two years ago, there were six during that same time period.  Sheriff Adam Hayward of Deuel County, Neb., said he was locking up more people for marijuana-related offenses. “It’s kind of a free-for-all,” he said. “The state or the federal government needs to step up and do something.”...

Police and fire officials across the state have been contending with a sharp rise in home explosions, as people use flammable butane to make hashish oil.. And despite a galaxy of legal, regulated marijuana stores across the state, prosecutors say a dangerous illicit market persists....

Many of Colorado’s starkest problems with legal marijuana stem from pot-infused cookies, chocolates and other surprisingly potent edible treats that are especially popular with tourists and casual marijuana users. On Colorado’s northern plains, for example, a fourth grader showed up on the playground one day in April and sold some of his grandmother’s marijuana to three classmates.  The next day, one of those students returned the favor by bringing in a marijuana edible he had swiped from his own grandmother.  “This was kind of an unintended consequence of Colorado’s new law,” said John Gates, the district’s director of school safety and security. “For crying out loud, secure your weed. If you can legally possess it, that’s fine. But it has no place in an elementary school.”

So far this year, nine children have ended up at Children’s Hospital Colorado in Aurora after consuming marijuana, six of whom got critically sick.  In all of 2013, the hospital treated only eight such cases.

Cross-posted at Marijuana Law, Policy and Reform

June 2, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (6) | TrackBack

Friday, May 30, 2014

A "true political game changer" as House votes to preclude feds from going after state-legal medical marijuana?!?!?

The question and/or statement in the title of this post is my reaction to Alex Kreit's reaction here at MLP&R to the notable vote late last night in the US House of Representatives concerning an amendment to an appropriation bill.  This MSNBC story provides the context and head-count:

It had all the markings of a measure that would no one notice: an obscure amendment to a low-profile bill, receiving a vote after midnight, the same week as a national holiday. It’s hardly a recipe for generating national headlines.

But the U.S. House of Representatives nevertheless did something overnight that Congress has never done. The House passed an amendment late Thursday night to restrict the Drug Enforcement Administration from targeting medical marijuana operations in states where it is legal.

The 219-189 decision came on a bipartisan appropriations amendment spearheaded by California Republican Rep. Dana Rohrabacher and California Democrat Sam Farr. The amendment still faces several procedural hurdles before it is ratified, but this is the first time such an amendment has succeeded in the House.

The roll call on the vote is here. Note that it passed largely with Democratic support – the vast majority of Dems voted for it; a clear majority of Republicans voted against it – but the measure was backed by a bipartisan group of co-sponsors.

At issue is a routine spending bill: providing federal funding for a variety of agencies, including the Justice Department, which occasionally enforces federal drug laws by raiding marijuana facilities in states where medical pot sales are legal.  The amendment intends to block federal law enforcement from doing so in the future.

In the process, as German Lopez reported, the House acted without precedent: “The bill is the first time in history that any chamber of Congress has acted to protect medical marijuana businesses and users.”  As Lopez’s report makes clear, the practical effect of the amendment means the House now believes that if states want to implement their own medical marijuana laws, they shouldn’t have to fear interference from the FBI.

“Congress is officially pulling out of the war on medical marijuana patients and providers. Federal tax dollars will no longer be wasted arresting seriously ill medical marijuana patients and those who provide to them,” Dan Riffle, director of federal policies at the Marijuana Policy Project, said in a statement. “This is a historic vote, and it’s yet another sign that our federal government is shifting toward a more sensible marijuana policy.”

Looking ahead, it’s not yet a done deal. The same spending bill has not yet been taken up by the Senate, and we don’t yet know how the upper chamber will feel about the DEA amendment. The measure would also need President Obama’s signature.

I share Dan Riffle's perspective that this is a historic vote, but I am not sure it really is a "game changer" as much a sign of the modern drug-war times. Whatever labels are used for the vote, though, it is certainly interesting and exciting for those eager to see a move away from the status quo with respect to federal pot prohibition and the broader federal drug war.

May 30, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 29, 2014

AG Holder urges fellow prosecutors to back his sentencing reform advocacy

This new NPR piece reports that "Attorney General Eric Holder took his case for overhauling the criminal justice system to an unlikely location on Wednesday — a closed-door conference of prosecutors, who were meeting at their national training center in Columbia, South Carolina." Here is more:

According to a person familiar with Holder's unpublicized remarks, Holder urged an audience of criminal division chiefs from U.S. Attorney's offices to support Smart on Crime initiatives that would reduce some drug sentences and to open up the clemency process to hundreds of inmates with clean records in prison.

Earlier this year, the Senate Judiciary Committee approved a bill that would cut some mandatory minimum penalties for non-violent drug offenders.  But in recent weeks at least three prominent groups have attacked the legislation, including nearly 30 former Justice Department officials who served under Republican administrations; longtime Sens. John Cornyn, R-TX, Charles Grassley, R-IA, and Jeff Sessions, R-AL; and even Holder's own DEA administrator.

The attorney general addressed those concerns by pointing out that the bill, known as the Smarter Sentencing Act, would leave in place tough mandatory minimum sentences for most drug traffickers, with add-ons for people who possess weapons, are repeat offenders, or those who are considered leaders of an ongoing criminal racket.

"These changes represent anything but a softening of our stance against crime and those who perpetrate it, or a relaxing of our unwavering commitment to combat the drug-fueled violence that plagues far too many communities," Holder said, according to a law enforcement source in the audience.  "On the contrary: in all our activities, we remain committed to the robust enforcement of federal anti-drug laws, and to focusing federal resources on the most significant threats to our communities," he said, according to the source.

May 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 27, 2014

Effective Sentencing Project and HRW responses to Senators' letter opposing the Smarter Sentencing Act

SSAI was very pleased to learn from helpful readers that Antonio Ginatta, the US Program Advocacy Director for Human Rights Watch, and Jeremy Haile, federal advocacy officer for The Sentencing Project, have now both authored effective and distinct responses to the May 12th letter sent by Senators Grassley, Sessions, and Cornyn to their Senate colleagues voicing opposition to the Smarter Sentencing Act (reported here).  Haile's response appears here at The Hill under the headline "Last stand for the drug warriors." Here are excerpts:

In a letter to colleagues, Sens. John Cornyn (R-Texas), Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.) wrote that the legislation “would benefit some of the most serious and dangerous offenders in the federal system.” The xenators raised the specter of a violent crime wave if minimum penalties for nonviolent drug offenses are reduced.

Describing the Smarter Sentencing Act as a sort of “get out of jail free card” for dangerous criminals is highly misleading. The bill would not eliminate a single mandatory minimum, nor would it reduce any maximum penalties. Instead, it would allow judges greater discretion in low-level cases, while preserving long sentences for the most serious offenders....

Unfortunately, some longtime drug warriors seem intent on throwing cold water on the sentencing reform movement just as it is heating up. Michele Leonhart, head of the Drug Enforcement Agency, recently testified that rather than unwinding the drug war, “we should be redoubling our efforts.” A number of former federal law enforcement officials have argued that current drug sentencing penalties should be preserved.

But we have tried incarcerating our way to a drug-free America, and that approach has failed. Three decades later, evidence is mounting that federal drug laws have led to skyrocketing prison populations without making communities safer. Meanwhile, illegal narcotics are as pure and as readily available as ever.

Rather than caving in to the “tough on crime” rhetoric of another era, Congress should seize a rare opportunity for reform. State after state has reduced drug sentencing penalties without jeopardizing public safety. Polls show that Americans, Republican and Democrat, favor treatment over prison for nonviolent offenders.

The old playbook on crime and punishment is worn out. It’s time to take a new approach to nonviolent drug sentencing.

Ginatta's response appears in an open letter available here to Senators Grassley, Sessions, and Cornyn detailing with hard data why so many of their claims are misguided.  I urge ervery to read the HRW reponse in full, and here is an excerpt:

Your letter states that drug-related mandatory minimums “are used almost exclusively for high-level drug traffickers.” Data from the United States Sentencing Commission tells a much different story. According to the Commission, 40 percent of federal drug defendants were couriers or street dealers.  In fact, nine out of ten federal drug defendants come from the lower or middle tiers of the drug business.  Because mandatory minimums are triggered by the quantity of drug involved, a street-level dealer can face the same minimum sentence as the head of a large drug trafficking organization. A typical federal drug offender is someone like Jamel Dossie, a 20-year-old, small-time street-level drug dealer’s assistant who received a five-year mandatory minimum sentence for working as a go-between in four hand-to-hand sales totaling 88.1 grams or 3.1 ounces of crack (the weight of an average bar of soap)....

You next cite in your letter that “those who would benefit from these reduced sentences are not ‘non-violent’ — they would include repeat drug traffickers and criminals with a history of violence.”  This is only part of the story.  Almost half (49.6 percent) of all federal drug offenders imprisoned in Fiscal Year 2013 fell under the lowest criminal history category (zero or one criminal history point under the federal sentencing guidelines).  And 83.8 percent of federal drug offenders during the same period were found to not have a weapon involved in their crime.  A small percentage of drug offenders may have used a weapon in their offense, but the mandatory minimums you defend are wilfully blind to the vast numbers of those who didn’t.  To brand all drug offenders as violent is too broad a sweep — no sane sentencing policy should make that assumption.

Some prior posts about the SSA and debates over federal sentencing reform:

May 27, 2014 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity

I just received a notice from the US Sentencing Commission which highlights that the USSC has some new research that can and should help inform the on-going discussion of whether and how the new reduced drug guidelines ought to be made retroactive. Here is the text of this notice I got via e-mail, which includes links to two important new research documents:

As previously noted, the Commission is seeking public comment on the issue of whether to apply its recent amendment to the drug quantity table retroactively.  The Commission will receive public comment on this issue through July 7, 2014.  Public comment can be emailed to  public_comment@ussc.gov.  To facilitate public comment on this issue, the Commission is making available the following materials:
 
In April, Commissioners directed staff to analyze the impact of retroactivity should the Commission vote to authorize retroactive application of the 2014 drug guidelines amendment.
 
The Commission also released an updated recidivism analysis of crack cocaine offenders who were released early after implementation of a 2007 guidelines amendment which retroactively reduced by two levels the base offense levels assigned by the Drug Quantity Table for crack cocaine.  In this five-year study, these offenders were compared with similarly situated offenders who served their original sentences.

May 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 20, 2014

Texas teen facing 5-to-life for selling pot brownies(!) highlights prosecutorial sentencing powers

A drug war and severe sentencing story making the media rounds today emerged via this recent local report headlined "Texas man facing possible life sentence for pot brownies." Here are the basics (which have already been sensationalized a bit in some media accounts I have seen):

A Texas man accused of making and selling marijuana brownies is facing up to life in prison if convicted.  That’s because officials in Round Rock have charged him with a first-degree felony.

It’s a move that the man’s family and attorney outraged. “It’s outrageous. It’s crazy. I don’t understand it,” Joe Lavoro, the man’s father said. Like many familiar with the case, Joe does not understand why his son is in so much legal trouble....

The 19-year-old is accused of making and selling pot brownies.  He’s charged with a first degree felony.  “Five years to life? I’m sorry.  I’m a law abiding citizen.  I’m a conservative. I love my country.  I’m a Vietnam veteran, but I’ll be ****ed.  This is wrong. This is ***n wrong!” the father said.

Lavoro’s lawyer agrees. “I was outraged. I’ve been doing this 22 years as a lawyer and I’ve got 10 years as a police officer and I’ve never seen anything like this before,” Jack Holmes, Lavoro’s attorney said.

The former high school football player has a clean record.  The charge is so severe because the recipe includes hash oil.  That allows the state to use the sugar, cocoa, butter and other ingredients to determine the weight of the drugs.  “They’ve weighed baked goods in this case. It ought to be a misdemeanor,” Holmes said.

KEYE reached out to the district attorney to ask how they’re going to prosecute the case.  Our call has not yet been returned....

Jacob’s father wants what’s right. “If he did something wrong, he should be punished but to the extent that makes sense. This is illogical. I’m really upset, and I’m frightened, I’m frightened for my son,” Joe said.

Jacob Lavoro's father is right to be frightened, in large part because it would seem that his son's fate is now almost entirely in the hands of local prosecutors. Though I do not know all the ins and outs of Texas drug laws, I assume that the local prosecutors can (and probably will) ultimately allow Lavoro to plead to some less charge rather than go to trial on a first-degree felony charge carrying a 5 to life sentence. But the fact that such a severe charge with a big-time sentence is even on the table all but ensures that the local prosecutor can extract a plea on whatever terms strikes his fancy.

May 20, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, May 16, 2014

New commentary highlights why DOJ's new clemency initiative is not enough of a good thing

Megan Quattlebaum has this notable new commentary up at Huffington Post under the headline "2,785 Petitioners for Clemency Need All of the Mercy Obama Can Give."  It highlights one of many cases not formally covered by the new DOJ clemency guidelines but still subject to what seems like an unfair federal drug sentencing system. Here are excerpts:

Shortly after high school, Michael Keating fell in with a bad crowd in his rural hometown in Missouri, and began experimenting with meth. By the age of 20, he was hooked and using the drug on a daily basis.  He met a man who said that if Michael allowed him to use the woods behind his house to produce drugs, he would give the young addict some of what he made.

Soon thereafter, police officers received information that meth was being made at Michael's home. They searched his property and found a bucket of waste water in the backyard. Although the waste water contained less than a gram of methamphetamine, pursuant to the Eastern District of Missouri's practice (which has been rejected by the majority of federal circuit courts and the U.S. Sentencing Commission) Michael, the sole defendant in the case, was charged as though the entire weight of the water in the bucket -- more than 2,700 grams -- was a marketable drug. He was sentenced to serve more than 11 years in federal prison.

Late last month, the Department of Justice announced a laudable initiative to seek out nonviolent drug offenders with long prison sentences whom it will consider for clemency. The initiative is open to federal prisoners who meet six criteria, including that they have served at least ten years of their sentence and likely would have received a substantially lower sentence if convicted of the same offense today. The goal, according to President Obama, is to help "restor[e] fundamental ideals of justice and fairness" to our penal system by releasing those who "would have already served their time and paid their debt to society" had they been sentenced under current law.

This is a tremendous step forward, but it won't help Michael Keating. He has only served seven and a half years in prison, not ten, as the initiative requires. And the law under which he was sentenced hasn't changed -- in Missouri, possession of the un-ingestible by-product of drug production is still punished just as harshly as possession of the same amount of marketable drugs. Michael's case is emblematic of our need to go even further to right the wrongs of failed sentencing policies.

Still, some who have commented on the initiative seem to view it as too much justice. One group of critics fears the "early" release of convicted felons into our communities. But, as Michael's story demonstrates, we need to take a hard look at individual cases before we assume that those with past convictions pose a present danger....

[W]hile President Obama is right to search out new candidates for sentence mitigation, he shouldn't neglect those meritorious individuals whose cases are already before him. Michael Keating's application has been pending for over two years; it is one of the 2,785 sentence commutation petitions on which the Pardon Attorney has not yet acted. In addition to seeking out new submissions, the President should take a close look at those he has in hand. On the path to saner sentencing policy, we will need all of the mercy that he can give.

May 16, 2014 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 14, 2014

How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?

SessionsThere are many interesting claims and notable contentions in the letter sent by Senators Grassley, Cornyn and Sessions to their colleagues explaining their opposition to the Smarter Sentencing Act (first reported here).  Most notable, I think, are the essential ideas set out at the start and end of the letter: despite a decades-long federal drug war that has grown the size of the federal government and has long included severe mandatory minimums prison terms, we still find ourselves in the midst of a "historic heroin epidemic" which apparently calls for "redoubling our efforts." I believe that the sensible response to ineffective federal government drug policies and practices would be to consider changing some of these policies and practices, not "redoubling our efforts" (and thereby redoubling the size of an apparently ineffective federal government bureaucracy).

But, as the question in the title of this post suggests, I am now especially wondering how Senator Jeff Sessions, who was a vocal supporter of Congress's decision in 2010 to reduce crack mandatory minimum sentences through the Fair Sentencing Act, has now signed on to a letter forcefully opposing a proposal to reduce other drug mandatory minimum sentences through the Smarter Sentencing Act.   Notably, in this March 2010 statement, Senator Sessions stated that he has "long believed that we need to bring greater balance and fairness to our drug sentencing laws" and that the FSA's change to crack mandatory minimums will "achieve needed fairness without impeding our ability to combat drug violence and protect victims." In his words, the FSA's reforms to crack mandatory minimums "strengthen our justice system."

But now, four years later, Senator Sessions has signed on to a letter opposing the Smarter Sentencing Act which claims that this proposal to "reduce sentences for drug traffickers would not only put more dangerous criminals back on the streets sooner, but it would send the message that the United States government lacks the will or is not serious about combatting drug crimes." This letter also asserts that "lower mandatory minimum sentences mean increased crime and more victims."

Critically, the SSA changes federal drugs sentencing laws significantly more than the FSA: the SSA cuts the minimum prison terms for all drug offenses rather than just increasing the amount of one drug needed to trigger existing mandatory prison terms as did the FSA.  Consequently, one can have a principled basis to have supported the FSA's reduction of crack sentences (as did nearly every member of Congress when the FSA passed) and to now oppose the SSA's proposed reduction of all federal drug sentences.  However, back in  2010, Senator Sessions recognized and vocally stated that reducing some federal drug sentences would actually "strengthen our justice system" by helping to "achieve needed fairness without impeding our ability to combat drug violence and protect victims."  I believe (like a majority of the Senate Judiciary Committee) that the SSA would likewise "strengthen our justice system," but Senator Sessions now seem to think it will "mean increased crime and more victims."

Some prior posts about the SSA and debates over federal sentencing reform:

May 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (12) | TrackBack

Tuesday, May 13, 2014

Another notable letter expressing opposition to SSA ... on US Senate letterhead

As noted here in this prior post, Bill Otis at Crime & Consequences broke the news yesterday that a significant number of significant former federal prosecutors signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums.   This morning I discovered that late yesterday Bill Otis put up here at C&C more notable news about opposition to drug sentencng form:  apparently this week, Senators "Chuck Grassley, John Cornyn and Jeff Sessions [have written] an all-colleagues letter explaining why the Smarter Sentencing Act should be defeated." 

(Side note: I use the term "apparently" concerning the report from Bill Otis regarding this letter because his reprinting of the letter at C&C here includes only the contents of the letter without any date or reprinted signatures.  In addition, Bill provide no link to the actual letter in any form, nor can I find any public resource or news media reporting on this letter.  Also, and a check/search of the official websites of the US Senate and of Senators Grassley and Cornyn and Sessions so far has produced no copy of the letter.   I assume this letter really exists, and I hope to be able to provide a link to an official public release of this letter shortly.  But I am finding it now more than a bit peculiar and troublesome that Bill Otis and Crime & Consequences has seemingly become the (un)official reporter of official opposition to the Smarter Sentencing Act.   These developments reinforce my fear that Bill Otis and perhaps some other unnamed lobbyists and partisans are playing a very significant and cloistered role in seeking to derail any new federal sentencing reforms in Congress.)

Notably, the substance of the letter reprinted at C&C echoes a lot of the themes that have been stressed by opponents of any federal sentencing reform, and it restates some of the points forcefully stated by Senator Grassley in this Senate floor speech last month.  But the letter is now the strongest collection of many of the strongest arguments against some (but not all) of the provisions of the Smarter Sentencing Act.  I recommend everyone read the letter, and I hope to be able to provide a link to a copy of the actual document from an official source before too long.

Some prior posts about the SSA and debates over federal sentencing reform:

UPDATE:  I am pleased and grateful that I was able to receive from a helpful reader a pdf copy of the original letter sent by the Senators referenced in this post and reprinted originally at C&C.   Minus the footnotes, here are the first two paragraphs of the letter followed by a downloadable copy:

The nation is in the midst of an historic heroin epidemic that is wreaking havoc in cities and towns from New England to the Pacific Northwest. According to the Drug Enforcement Administration (DEA), the amount of heroin seized at the southwest border has increased nearly 300% from 2008 to 2013, while heroin-overdose deaths have increased by 45%. At the same time, approximately 4.3 million people abuse or are dependent on marijuana. In 2012, almost 32 million people ages 12 and older reported using marijuana within the past year and, in 2013, one out of every 15 high school seniors reported being a near daily user. According to the 2013 National Survey Results on Drug Use, 50% of high school seniors reported having used illegal drugs at some point in their lives.

It is against this grim backdrop that we write to express our concerns with S. 1410, the "Smarter Sentencing Act of 2014," which would benefit some of the most serious and dangerous offenders in the federal system by cutting in half (or more) mandatory minimum sentences for high-level drug trafficking offenses. The proponents of S. 1410 claim that it will reduce sentences for so-called "low-level, non-violent" drug offenders. These terms, as well as the bill's claimed effect, are highly misleading. In fact, nothing in this bill will affect the lowest level federal drug offenders at all.

Download Senators letter to Colleagues on SSA

May 13, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, May 12, 2014

Significant collection of significant former federal prosecutors write to Senators to oppose SSA

Thanks to this new post by Bill Otis at Crime & Consequences, titled "Former Top DOJ Leaders Oppose the SSA," I have learned that a significant number of significant former federal prosecutors — including former US Attorneys General William Barr and Michael Mukasey — have signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums. The full text of the letter is available at C&C, and here are excerpts:

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals.  We are concerned specifically by proposals that would slash current mandatory minimum penalties over federal drug trafficking offenses — by as much as fifty percent.  We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety.  We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP.  We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking — not drug possession offenses — and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities.  This "safety valve," as it's known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety.  We have made great gains in reducing crime.  Our current sentencing framework has kept us safe and should be preserved.

In addition to thinking this letter is a pretty big deal, I am now wondering if it represents the final nail in the Smarter Sentencing Act's coffin or instead reveals that the SSA might still have some legs. Based on the lack of action on the SSA over the last few months, I have been assuming this effort at federal sentencing reform was dying a slow death, and this letter from a lot of prominent former prosecutors provides yet another reason and basis for member of Congress to express additional concerns about the sentencing reforms in the SSA. And yet, if the SSA was already in its death throes, I doubt there would have been so much obvious energy devoted to getting all these prominent former prosecutors speaking out against the reforms in the SSA.

All that said, I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)

Some prior posts about the SSA federal prosecutorial perspectives on sentencing reform:

May 12, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, May 09, 2014

Applying strict scrutiny, Louisiana Supreme Court upholds facial constitutionality of criminalizing gun possession with illegal drug possession

Thanks to this post by Eugene Volokh, I see that the Louisiana Supreme Court issued an interesting and important unanimous decision earlier this week upholding a state gun crime statute against a facial state constitutional challenge.  Here is how this opinion in Louisiana v. Webb, No. 2013-KK-1681 (La. May 7, 2014) (available here), starts and ends:

We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional.  Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree.  Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.....

To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have “qualified his right” to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420 (indicating “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.”).

Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? “We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls.” Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles, Dept. of Public Safety and Corrections of State, 97-2233 (La. 4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate’s expectations of a society whose hallmark is ordered liberty.

We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.

May 9, 2014 in Drug Offense Sentencing, Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 07, 2014

Elderly coke dealer, on his 90th birthday, gets 3-year prison sentence

As reported in this local piece, headlined "90-Year-Old Drug Mule Sentenced To 3 Years For Part In Major Drug Scheme," a unique drug dealer got a pretty standard drug sentence in federal court in Michigan today. Here are the details:

Leo Sharp learned that he would spend three years in federal prison for his role in a major drug operation in which prosecutors say Sharp transported more than 2,000 pounds of cocaine to across the country before being caught in Michigan.  Sharp was running bricks of cocaine from Tucson, Arizona, to Detroit when he was pulled over near Chelsea, 60 miles west of Detroit, after making a bad lane change in 2011.

Outside the courthouse Sharp cried that he was “heartbroken” and didn’t feel that his age had anything to do with the length of his prison sentence. When a state trooper approached, Sharp was upset and declared, “Just kill me and let me leave this planet.”...

Prosecutors were recommending a five-year prison sentence — urging the judge to look beyond Sharp’s age and health issues and lock him up for delivering more than a ton of cocaine.  Assistant U.S. Attorney Christopher Graveline, noted that there’s video of Sharp  — known as “grandpa” and “old man” — joking and laughing with others charged in the drug conspiracy.

Graveline said Sharp received at least $1.25 million from his handlers for hauling more than 2,750 pounds of cocaine to Michigan from the Southwest in 2010 and 2011.  He’s one of 19 people under indictment in a case connected to Mexico’s Sinaloa drug cartel. Graveline said the cartel “literally flooded the streets of southeast Michigan and Fort Wayne, Indiana, with kilograms of cocaine.”

Sharp, of Michigan City, Indiana, had hoped to stay out of prison.  Defense attorney Darryl Goldberg said Sharp has dementia and other issues, and would be a burden for the prison system. “Of course I respectfully disagree with the judge’s sentence but she is a very experienced jurist and I hope that Leo can survive the sentence,” said Goldberg....

During sentencing Judge Nancy Edmunds said Sharp was in the middle of a huge operation and transported cocaine six different times and was paid more than a million dollars.

Recent related post:

May 7, 2014 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (6) | TrackBack

Monday, May 05, 2014

New York Times op-ed spotlights enduring flaw with modern drug sentencing

Today's New York Times has this notable new op-ed authored by Mark Osler under the headline "We Need Al Capone Drug Laws."  Here are highights:

After a ruinous 30-year experiment in harsh sentences for narcotics trafficking resulting in mass incarceration, policy makers are having second thoughts.  Many states, including Texas, have reformed their laws to shorten sentences.  Congress is giving serious consideration to the Smarter Sentencing Act, which would do the same. The United States Sentencing Commission has just adopted a proposal to revise federal guidelines.

And most recently, Attorney General Eric H. Holder Jr. announced that President Obama intends to use his executive pardon power to release hundreds or even thousands of federal prisoners with narcotics convictions (I am on a committee to train lawyers for the project).  Something like that hasn’t happened since President John F. Kennedy granted clemency to more than 200 prisoners convicted of drug crimes.

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure.  If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence.  That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant.  It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons....

Some laws create remarkably low thresholds for the highest penalties.  For example, my home state of Minnesota categorizes someone who sells just 10 grams of powder cocaine (the equivalent of 10 sugar packets) as guilty of a first-degree controlled-substance crime — the most serious of five felony categories.  There is no real differentiation between the most culpable wholesaler and an occasional street dealer.  

The problem with recent legal reforms is that they don’t dispose of this rotten infrastructure.  In 2010, Congress passed the Fair Sentencing Act, which changed the ratio between crack and powder cocaine for sentencing purposes from 100-to-1 (meaning the same sentence applied to 100 grams of powder cocaine and to 1 gram of crack) to 18-to-1.  

What the Fair Sentencing Act didn’t do is change the basic weight-centric centric focus that has filled our prisons with narcotics convicts. There were 4,749 such prisoners serving federal time in 1980, before the harshest weight-based standards were implemented. As of 2013, that number was 100,026. As for the drugs themselves, they’re still here....

A better measure of culpability would be the amount of profit that any individual took from the operation of a narcotics ring. Because narcotics conspiracies are nothing more or less than a business, they operate like any other business. The people who have the most important skills, capital at risk or entrepreneurial abilities take the most money. Statutes and guidelines should be rewritten so that profit thresholds replace narcotic weight thresholds. Only then will mules and street sellers properly face much shorter sentences than real kingpins.

This would, of course, create a new challenge for prosecutors and investigators, who would have to prove the amount of profit made by an individual defendant. It wouldn’t be as easy as snatching up mules and street dealers. But then “easy” and “justice” rarely rest comfortably with each other.

May 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4) | TrackBack

Thursday, May 01, 2014

You be the federal sentencing judge: what prison term for massive drug courier ... who is a 90-year-old WWII vet?

Old guyThis remarkable Detroit Free-Press article reports on a remarkable drug criminal facing a remarkable federal sentencing next week.  The piece is headlined "Convicted drug mule to spend 90th birthday in court facing sentencing," and here are the details:

An Indiana senior citizen will celebrate his 90th birthday in bizarre fashion Wednesday: getting sentenced in federal court for hauling cocaine across the country for a Mexican drug cartel. Convicted drug mule Leo Earl Sharp, though, is hoping to stay out of prison....

Sharp’s lawyer says prison is no place for his client: a frail, decorated World War II veteran who suffers from dementia.  “Labeling a war hero like Mr. Sharp a federal felon and forever tarnishing his reputation is sufficient punishment in itself; a sentence of imprisonment would be greater than necessary,” defense attorney Darryl Goldberg wrote in court documents....

The U.S. Attorney’s office has not yet filed a sentencing recommendation, but is expected to do so before Sharp’s sentencing before U.S. District Judge Nancy Edmunds. In a previous court document — Sharpe’s plea agreement — prosecutors recommended a five year prison sentence.

Sharp, of Michigan City, Ind., was arrested in 2011 during a traffic stop near Ann Arbor, where he was busted with nearly $3 million worth of cocaine in his pickup. Authorities eventually learned that the elderly pickup driver was a courier for a massive drug ring that ran a cocaine pipeline between Mexico and Detroit for several years, according to an indictment that charged 18 defendants total....

In October 2013, Sharp pleaded guilty to conspiracy to posses with intent to possess and deliver cocaine.  Under the terms of his plea agreement, the sentencing guidelines call for a 168-210 month prison sentence, although prosecutors said they would recommend five years. Sharpe’s lawyer has requested home confinement.

“When you are living on Social Security for your entire income, you are really in need of money and that’s why I did what I did at first. I didn’t think about the consequences of my actions and I made a tremendous mistake.  I should not have gotten involved and I feared for my life and my family’s lives and felt I had no choice,” Sharp explained in a report to a U.S. probation officer. Sharp also explained that he “agreed to transport money in exchange for a fee … and was later asked to carry drugs.” When he told his cohorts that he “wasn’t going to do that anymore, they put a gun to (his) head and threatened (him) and said they would kill (his family.)”...

According to the indictment, Sharp was a drug courier for two years, delivering roughly 670 kilograms of cocaine to conspirators in Michigan between 2009 and 2011. Shipments of cocaine would be received at the Arizona-Mexico border, and then driven to Michigan, where members would meet at a warehouse in Wyandotte and unload the drugs for distribution. The drug organization, records show, is a part of an international drug cartel based in Sinaloa, Mexico, and helped distribute between 100 and 300 kilograms of cocaine per month in metro Detroit from 2008 through 2011.

May 1, 2014 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (7) | TrackBack

DEA head tells Senate DEA supports "scientific research efforts" concerning marijuana

As reported in this Washington Post article, headlined "DEA chief says marijuana-trafficking spiking in states near Colorado," the head of the Drug Enforcement Agency testified in Congress yesterday and expressed concerns about marijuana legalization and expressed support for mandatory minimum drug sentences:

Administrator Michele Leonhart said the DEA is troubled by the increase in marijuana trafficking in states surrounding Colorado and worries that the same phenomenon could be repeated around Washington state, where recreational marijuana is expected to be sold legally soon. In Kansas, she said, there has been a 61 percent increase in seizures of marijuana from Colorado.

Speaking to the Senate Judiciary Committee, Leonhart said the softening of attitudes nationwide about the risk of marijuana has confirmed some of the agency’s fears. “The trends are what us in law enforcement had expected would happen,” she said. “In 2012, 438,000 Americans were addicted to heroin. And 10 times that number were dependent on marijuana.”...

DEA officials have expressed frustration privately about the legalization of marijuana by Colorado and Washington state, where local officials consider the change an opportunity to generate tax revenue and boost tourism. But in January, James. L. Capra, the DEA’s chief of operations, called marijuana legalization at the state level “reckless and irresponsible,” and warned that the decriminalization movement would have dire consequences. “It scares us,” he said during a Senate hearing. “Every part of the world where this has been tried, it has failed time and time again.”...

On Wednesday, Leonhart spoke about why she thinks marijuana is dangerous. She said that marijuana-related emergency-room visits increased by 28 percent between 2007 and 2011 and that one in 15 high school seniors is a near-daily marijuana user. Since 2009, she said, more high school seniors have been smoking pot than smoking cigarettes....

Leonhart also spoke out in support of mandatory minimum sentencing for drug crimes, an issue Holder has highlighted recently as part of his initiative to reduce prison crowding and foster equity in criminal sentencing. Holder has instructed his 93 U.S. attorneys to use their discretion in charging low-level, nonviolent criminals with offenses that impose severe mandatory sentences.

Leonhart, in response to a question from Sen. Charles E. Grassley (R-Iowa), said: “Having been in law enforcement as an agent for 33 years [and] a Baltimore City police officer before that, I can tell you that for me and for the agents that work at the DEA, mandatory minimums have been very important to our investigations. We depend on those as a way to ensure that the right sentences equate the level of violator we are going after.”

Though the press coverage of the DEA chief's remarks suggest she is continuing the standard drug war posture of all modern administrations, her prepared testimony (available here) included thes three notable sentences about the DEA's support for medical marijuana research:

The National Institute on Drug Abuse (NIDA) and other components of the National Institutes of Health are conducting research to determine the possible role that active chemicals in marijuana, like tetrahydrocannabinol, cannabidiol, or other cannabinoids may play in treating autoimmune diseases, cancer, inflammation, pain, seizures, substance use disorders, and other psychiatric disorders.  DEA supports these, scientific research efforts by providing Schedule I research registrations to qualified researchers.  In fact, DEA has never denied a marijuana-related research application to anyone whose research protocol had been determined by the Department of Health and Human Services to be scientifically meritorious.

Perhaps these kinds of statements from DEA in support of "scientifically meritorious" medical marijuana research are not uncommon.  Still, these sentences struck me as notable and telling in the context of the DEA chief's many other anti-marijuana-legalization comments.

May 1, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 29, 2014

Judge Paul Friedman identifies drug defendant who should benefit from Clemency Project 2014

I am intrigued and pleased to have learned that this afternoon District Court Judge Paul Friedman issued an opinion in US v. McDade, No. 13-1066 (D.D.C. Apr. 29, 2014) (available for download below), which in part responds to the Justice Department's recent announcements about its new clemency initiative.  I urge all those wondering about the types of defendants and cases that the new clemency initiative might help to read Judge Friedman's new McDade opinion in full; here is a snippet that provides a sense for why:

On February 25, 2002, after a ten-day trial, a jury found defendant Byron Lamont McDade guilty of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine. Most of the witnesses at trial were his former co-defendants or others involved in the conspiracy who had negotiated pleas with the government involving cooperation and testimony. In fact, McDade was the only one of those charged in this multi-defendant case to have proceeded to trial.  Regrettably, pursuant to the then-mandatory pre-Booker sentencing guidelines, the Court was required to sentence McDade to 324 months in prison, a sentence which the Court described at the time as “much more than sufficiently punitive.”...

At the time the Court sentenced Mr. McDade nearly twelve years ago, on May 31, 2002, he was a 34-year old married man with two young children, one of whom is disabled.  He was a high school graduate who had been employed more or less steadily as a loader for United Parcel Service, as an apprentice for a plumbing company, as a self-employed operator of a company that provided transportation to the handicapped, and as a sanitation truck driver.  He was described by his wife, a hair stylist who suffers from a heart murmur, as a good father to their children and to her son by a prior relationship.   Before his current conviction, Mr. McDade had one prior misdemeanor conviction for which he was ordered to pay a ten-dollar fine. Id. at 10-11. For the instant offense, he faced a ten-year mandatory minimum sentence and, at Offense Level 41, Criminal History Category I, a pre-Booker guideline sentence of 324 months to life.....

In denying Mr. McDade’s first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, the Court [noted that] ... had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  [This Court also then noted that] had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months....

Earlier this year, Deputy Attorney General James M. Cole previewed a new effort on the part of the Department of Justice to identify individuals who are potential candidates for executive clemency and sentence commutations and whom he hoped, with the help of volunteer lawyers and bar associations, would be encouraged to prepare clemency petitions to the Department of Justice.  He said at the time: “For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments, that are out of line with sentences imposed under today’s laws, erode people’s confidence in our criminal justice system.”  Then, just last week, Deputy Attorney General Cole formally announced a new initiative to encourage qualified federal inmates to petition to have their sentences commuted or reduced by the President, an initiative that will have the assistance of numerous volunteer attorneys and groups under the umbrella Clemency Project 2014.  He noted that the initiative is not limited to crack offenders, but to “worthy candidates” who meet six specific criteria.  He stated that this clemency initiative “will go far to promote the most fundamental of American ideals – equal justice under law.” 

The Court continues to believe that Byron McDade is a prime candidate for executive clemency.  The sentence this Court was required to impose on Mr. McDade was unjust at the time and is “out of line” with and disproportionate to those that would be imposed under similar facts today.  While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not.  The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.

Download McDade opinion

April 29, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, April 22, 2014

Short federal sentence for cocaine offense when "'Breaking Bad' meets 'Walter Mitty'"

32-waltermittyA remarkable federal drug sentencing case culminated in a short prison sentence as reported in this local article headlined "'Breaking Bad' meets 'Walter Mitty' in Alachua County contractor's cocaine sentencing."  Here are the details:

The judge said the criminal case seemed to be more like a movie than an actual court proceeding. But on Monday the strange saga of an Alachua County man who went to Puerto Rico to try and dig up 11 pounds of cocaine ended in a short prison sentence and a pledge to volunteer with Habitat for Humanity.

U.S. District Judge Timothy Corrigan sentenced Rodney Hyden, 56, to 60 days in prison, one year of home detention and five years of supervised release.  In imposing the sentence, Corrigan said it was one of the most difficult decisions he’d had to reach in a long time.  He said he’s struggled with what the proper sentence should be.

Hyden, who owns his own construction company, will also be required to volunteer an average of 20 hours a week at Habitat for Humanity during his home detention and supervised release and will also be expected to build a Splash Park for the city of Newberry, where he lives.

Hyden could have faced 10 years in prison, but prosecutors waived the minimum mandatory laws and said the crime didn’t mandate a sentence that long.  The head of Habitat and the mayor of Newberry also wrote letters to Corrigan saying they were comfortable with Hyden providing his services.

Defense Attorney Mark Rosenblum argued that his client should be let off without jail time and required to do the community service with Habitat for Humanity and Newberry. Federal prosecutor Tysen Duva asked for 30 months of prison.  “Rodney Hyden is a good man who made a bad mistake,” Rosenblum said. “Luckily for him, the government was represented by an honest prosecutor and the case was presided over by an extremely fair judge.”

A neighbor of Hyden’s in Newberry told him that when he lived in Puerto Rico he found cocaine washed up on the beach and buried it near the trailer where he lived at the time. Hyden talked to several people about getting the cocaine, but he didn’t know that one of those people, Daniel Jimenez, was working as an informer for the Alachua County Sheriff’s Office.

Two undercover agents posing as narcotics traffickers met with Hyden and offered to help him get the drugs to Northeast Florida.  Hyden went to Puerto Rico twice seeking the drugs, but couldn’t find them.  He ended up giving a treasure map of where he thought the drugs might be to the undercover agents.  Police found the drugs, which had degraded to the point of being worthless, and arrested Hyden.

During the trial, Rosenblum argued that his client had been entrapped by the government and never would have gone after the drugs if people working for the government hadn’t encouraged it.  Jurors rejected that argument.

Hyden was convicted of a serious crime, but at the same time there was no real victim in the case, and even if he’d managed to retrieve the drugs he could not have sold them because they had degraded so much, Corrigan said.  Corrigan said the seriousness of the drug crime mandated some prison time, but not a lot.

The judge also dropped some pop culture references. “If this case wasn’t so serious it would make a great movie,” Corrigan said.  “It’s a combination of ‘Breaking Bad’ and the ‘Secret Life of Walter Mitty.’”

April 22, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Sunday, April 20, 2014

"WWJD? Reform Alabama's horrible criminal sentencing laws"

Jesus_in_prisonThe title of this post is the headline given to this provocative commentary authored by Sue Bell Cobb, a retired Alabama Supreme Court Chief Justice. Here are excerpts:

As the former Chief Justice of Alabama, I am proud to have devoted my career to the cause of justice in our state. But as a lifelong United Methodist, it shames me to know that if Jesus came to our state today, he would chastise me and every other Alabama Christian for our nearly complete silence on a terrible injustice taking place under our noses and in our names every day: ineffective, absurdly harsh sentencing laws that lead to overcrowded, dangerous prisons that breed more crime.  What would Jesus do? Fix our criminal sentencing laws.

Our shame should be all the greater because we cannot pretend that we do not know the truth. In poll after poll, we say that we understand that there are cheaper and more effective ways to punish non-violent, drug-addicted offenders than by locking them up in prison.  Virtually every Alabama newspaper has reported on our state's horrendously overcrowded prisons.

It is undisputed that no state in the nation has prisons as over-crowded and underfunded as ours.  Alabama prisons have almost twice the number of inmates they were designed to hold and far too few correctional officers guarding them.  They are terrible, deadly violent places that truly decent people would not tolerate in our midst.

The Alabama Legislature recently completed another legislative session and did nothing to remedy this deplorable situation. Why did the legislature fail to act?  A lack of leadership is an easy answer, but it is also a tremendous cop out.  As Christians, do we need politicians to show us the way? No.  In Alabama today and everywhere, except for Senator Cam Ward of Shelby County, politicians are followers, not leaders.  It falls to us, as people who profess to be passionate about true, meaningful justice to be visible and vocal on this issue.  We must lead our politicians onto the path of justice.  Thus far, we have failed to do so....

Every dollar we misspend and waste on inappropriately locking up a non-violent offender, is a dollar that is desperately needed for prevention of child abuse and neglect, mental health services, education, parks, libraries healthcare and our deteriorating infrastructure.  Prevention programs are much more cost-effective with lasting benefits that improve the quality of life for everyone.

By locking up low risk, nonviolent offenders with higher risk offenders, we are making ourselves less safe.  There are less expensive, more effective community alternative punishment programs which appropriately punish an offender without sending them off to prison.  Model drug courts, the replication of which was a major priority of mine during my tenure as Chief Justice of the Alabama Supreme Court, HOPE courts, mental health courts, expanded community corrections and work release, intensive probation services, and evening juvenile reporting centers are examples of ways to hold offenders accountable, yet also try to fix the issues that initially lead them to a life of crime.

It is the Easter season, and Christians like me will fill our churches to hear the story of a prisoner who suffered a terrible and unjust punishment.  Our hearts will swell with shame over the sacrifice that Our Lord made for us -- "while we were yet sinners."  We will rededicate ourselves to serve Him.

And then we will go home and say and do nothing about the thousands of injustices in Alabama courts and prisons carried out in our name every day.

As I contemplate what that "prisoner" from 2,000 years ago would say about those prisons, I am inspired to act.  And I tremble in fear about how He will judge me if I do not.

April 20, 2014 in Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack