Sentencing Law and Policy

New report urges Texas to save money and improve public safety via drug treatment

As detailed via this article in the Texas Tribune, headlined "Report: Invest in Drug Treatment Instead of Punishment," a detailed new report is pitching Texas lawmakers to spend more resources on treatment for drug offenders. Here is the start of the article (which includes a link to the report):

Instead of throwing drug addicts in jail, the state should invest more money in substance abuse treatment, says a report issued Thursday by the Texas Criminal Justice Coalition, which adds that the move could provide millions of dollars in savings and improve public safety.

“You cannot cure addiction by locking it up,” said Ana Yáñez Correa, executive director of the coalition. “It doesn’t cure it; it makes it worse.” 

In Texas, arrests for drug possession have increased 32 percent in the last decade, and about 90 percent of all drug-related arrests are for possession — not dealing, according to the report. In 2011, the nearly 15,000 inmates in jails and prisons on drug possession offenses statewide cost taxpayers more than $725,000 daily. The coalition argues that providing more state resources for treatment would be less costly and would prevent crimes associated with drug use. 

Since 2007, lawmakers have directed money that would have been invested in building new facilities for a growing inmate population to diversion, probation and treatment programs. As a result, the prison population has fallen so much that in 2011 lawmakers for the first time closed a Texas prison, the Central Unit in Sugar Land. And this year, state Sen. John Whitmire, D-Houston, has said lawmakers should consider shuttering two additional units.

But in the face of a $27 billion budget shortfall in 2011, lawmakers curtailed the growth of some of the diversion and treatment programs that had helped slow the incarceration rate in Texas. Without more investment in those kinds of programs, Texas prisons and jails could again exceed their capacity by 2014, according to the report. 

While Texas has one of the highest incarceration rates nationally, the report notes, it has one of the lowest drug treatment admission rates. In 2009, more than 53,500 outpatient and residential treatments slots were available statewide, and a waitlist with more than 14,000 names. Forcing addicts who are seeking treatment to wait can have dire consequences, including the commission of crimes that land them behind bars.

Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives

One of my favorite readers forwarded me this recent commentary by Carl Hiaasen of the Miami Herald concerning pot policy which included a sentence that gave me real clarity on why I find the politics of marijuana reform so interesting.  The piece is headlined "War on pot has gone up in smoke," and here are some excerpts with the key sentence emphasized:

The war on marijuana is going up in smoke, and it's about time.  There is no bigger waste of money and resources in all law enforcement.  Failure is too polite a description for the long campaign to eliminate the pot trade in the United States.  A colossal flop is what it is. After four decades and billions spent, marijuana is easier to get, and more potent, than ever.

More than 40 percent of all Americans over 12 have tried it, and at least 30 million people smoke it every year.  The most recent national drug survey found that 18.1 million Americans had used it during the previous month.

Pot is now medically dispensed in 18 states and Washington, D.C.  It's the largest cash crop in the nation's largest agricultural state, California.  A legitimate pain reliever for cancer victims, "medicinal" marijuana is now available for an assortment of other symptoms, some of them conveniently vague and impossible to discount.  It's not terribly hard to get a prescription.

In November, voters in Colorado and Washington dropped the pretense and approved the adult recreational use of weed.  Other states will follow in coming years.

Absurdly, the government still classifies pot as a Schedule I Controlled Substance, the same as heroin and cocaine.  Federal law prohibits medical marijuana use, and the Obama administration has taken action against dispensaries in California.   It's a lost cause, and an expensive one.  Any true fiscal conservative should be outraged by the waste and futility.

States are rewriting their marijuana laws because that's what makes sense.  Regulate it, tax it, and make a ton of money from it.  Another benefit of decriminalization is liberating overworked police and prosecutors, whose talents are being misspent on dumb, dead-end pot cases — 50 plants in a grow house tended by some hapless bozo who doesn't even know where the seeds came from. Most Americans would prefer to see drug agents shutting down meth labs and pill mills, which actually kill people.

Like it or not, marijuana is so deeply imbedded in our culture that it will never go away. You can find it on Wall Street, Main Street or K Street, on any college campus or military base. Some drug experts fear that more lenient laws will increase consumption and abuse. Others believe a lawful marketplace will prove safer.  Regardless, the saturation level of reefer is already high.

In 2011, according to FBI statistics, a marijuana-related arrest occurred every 42 seconds in the United States.  That's how abundant the stuff is.  Some of those who got busted were career criminals who happened to be caught with a joint in their pockets, but many were casual users or small-time sellers.

Those who get prosecuted on minor pot charges disproportionately tend to be Hispanics and African-Americans, not the white college kids who are toking up a storm.  Cannabis laws have always been selectively enforced, and lots of people are sitting in jail who shouldn't be there.

The current useless Congress is unlikely to tackle marijuana reform, but the Justice Department could do all taxpayers a favor by letting each state decide for itself.  Making pot legally available to adults will require caution....  Inevitably, though, more states will ease their marijuana laws. Money is why; potential revenues from taxing pot cultivation and sales are too substantial to forego. Even the boneheads in Tallahassee will one day figure that out.

Watching America's legalization movement with gloom are the Mexican drug cartels, whose vast profits from grass smuggling will wither with the loss of their most lucrative market.  Pot smokers would just as soon buy it from a licensed dispensary, but they will definitely keep buying it, no matter what the government does.

Though I suppose this point should be pretty obvious, the sentence I have highlighted above provides an effective and stark reminder that positions on pot policy now provide an effective means to distinguish social conservatives and fiscal conservatives.   Indeed, for me personally, I suspect it my own deep fiscal conservative instincts — and surely not any 1960s-era, Great-Society-type social liberalism — that leads me to be a sharp critic of the drug war in general and of pot prohibition generally.  More broadly, as this commentary rightly asserts, it is hard to see how any TRUE fiscal conservatives could or would support the status quo of federal pot prohibition.  If one claiming to be a fiscal conservative supports federal pot prohibition, she must at least admit that, as a governing philosophy, she cares more about social issues than economic ones and that she thinks it essential for the federal government to prioritize social issues over economic concerns even while racking up trillions in debt on a yearly basis.

This fiscal vs. social perspective serves, of course, to further link continued support for modern pot prohibition with historic support for alcohol prohibition and similar morals legislation typically advanced by big-government progressive movements.  Historically, it is would-be social reformers who believe government can and should advance a particular social agenda and who will consistently spport bigger and more expensive government if and whenever that government promises to further a (now-government-imposed) social agenda.

In addition to having historical resonance, this perspective makes it easier to understand the seemingly disparate leaders of the new anti-marijuana reform group calling itself Project SAM  (discussed here; website now here).  Project SAM is headed by Patrick Kennedy and its most vocal leader of late has been David Frum, who was a chief speechwriter in the Bush Administration.  (The rest of the leadership team for Project SAM, as reported here, appears to be persons with MDs and PhDs, which supports SAM's claim to be eager to bring a public health focus to the marijuana reform discussion.)   Patrick Kennedy, of course, comes from the political family perhaps most well known in modern Democratic history for supporting big-federal-government, tax-and-spend programs to promote one vision of social welfare without too much concern about whether expensive government-run social programs actually work.  And David Frum comes from a Bush Administration which made its mark by being fiscally irresponsible through big-federal-government, spend-and-spend programming at home and abroad.

It should thus come as no surprise that these kinds of folks will be heading up efforts to continue to support what looks like a failed big-government criminal justice program.  That said, the marijuana part of the drug war can claim, as one very tangible achievement, that it has helped ensured that lots of taxpayer-funded police, prosecutors and prison officials could make healthy public-sector-union salaries and pensions while being able to focus time and energies on what would appear to be among the least dangerous of modern drugs and drug offenders.  And I suppose only time will tell whether and how the long-term financial burdens imposed by the enduring, big-government "war on pot" will hurt our kids more than a regulatory regime which might lead them to make false IDs in the hope of scoring some pot from the local drug store for a high school party.

"Why Has Obama Pardoned So Few Prisoners?"

The title of this post is the headline of this new commentary by Sasha Abramsky which will appear in the January 28, 2013 issue of The Nation. (Hat tip: How Appealing.) The piece gives particular attention to the sad case of my former habeas client Weldon Angelos, and here are excerpts:

Six and a half years ago, I drove out to Lompoc federal penitentiary in the hills outside Santa Barbara to interview Weldon Angelos, a young man who had received the improbable sentence of fifty-five years without parole for selling marijuana, ostensibly while carrying a small pistol in an ankle holster.

A rap artist from Salt Lake City and friend to Napoleon and other eminences of the hip-hop world, Angelos had been ensnared by an informant in a series of undercover marijuana purchases that reeked of entrapment. What might have been a two-bit state pot case became a high-stakes federal case. When Angelos — who denied carrying a gun when dealing — refused to enter a guilty plea, the feds played hardball, piling more indictments onto the original charge.  In December 2003, more than a year after he had been arrested, Angelos was found guilty on several counts, though he was acquitted on others.  Because of mandatory minimum statutes linked to the firearms charges, the presiding judge — a George W. Bush appointee named Paul Cassell — was left with no discretion at sentencing. After asking the prosecuting and defense attorneys to advise him on the constitutionality of the sentence, a distraught Cassell handed down the fifty-five-year term, a punishment he called “unjust, cruel and even irrational.”  In his opinion, he urged then-President Bush to pardon the young father of three and right a clear judicial wrong.

Angelos was 23 when he was arrested.  He was in his mid-20s when I met him. It was such an obvious injustice that I thought the odds were pretty good he’d be out of prison by the time he was 30.  Surely one or another president would pardon him or commute his sentence, either reducing it or allowing him to be released on time served.

But today Angelos is in his early 30s and fast approaching his ten-year anniversary behind bars. Bush didn’t pardon him.  Neither has President Obama — despite earlier pleas on Angelos’s behalf from several ex-governors, dozens of ex–federal prosecutors and judges, and four US attorneys general; despite growing concerns over mandatory minimum sentences from members of Congress; despite the pledge by onetime Salt Lake City mayor and civil rights lawyer Rocky Anderson to “do anything I can to remedy this unbelievable injustice”; despite The Washington Post and other leading publications urging clemency; despite the fact that, at least rhetorically, the Obama administration has moved away from the sensational, fearmongering tactics of the drug war, and that drug czar Gil Kerlikowske doesn’t even like to talk about a “war on drugs”; despite the fact that in late 2012 Obama said the feds had “bigger fish to fry” than prosecuting marijuana users in states moving toward legalization; despite the fact that one state after another has rolled back its most draconian mandatory minimum sentences for small-time drug users and dealers....

So why hasn’t Obama done the right thing? Could it be that Angelos has just gotten lost in the shuffle? Possibly — but if that’s the reason, there would be evidence that Obama has used his pardon and commutation powers wisely in other cases. Unfortunately, that’s not true....

A president who talks the talk about more sensible, nuanced drug policy, and whose oratory frequently invokes what is best in the American political imagination, has shown himself remarkably reluctant to use one of the most important of presidential prerogatives—the power to right judicial wrongs. “This president,” says Anderson, “has been unbelievably timid and disinclined to do justice in cases that scream out for commutation.  There’s not a lot of moral or political fortitude in play.”...

In the long run, when it comes to preventing future unjust sentences like the one given Angelos, Congress and state legislatures should be the ones to roll back the excesses of the drug war.  And there’s no doubt that Obama, a constitutional law scholar, understands how much more powerful legislation is than the willful, even capricious, pardon function of the president. (After all, Clinton was excoriated for what appeared to be pardons issued in exchange for campaign and other contributions.  And Bush was heavily criticized for commuting the prison term of his disgraced adviser Lewis Libby.)  But when there’s a massive miscarriage of justice — as has happened all too often during the forty years of the “war on drugs” — the president’s ability to pardon or commute sentences is vital.

How does one tell Weldon Angelos’s kids that their father will not only never walk them to school but that he will never walk their children to school?  That if he survives fifty-five years in prison, he might get out just in time to walk his great-grandchildren to school. It’s unconscionable that such a sentence should stand.  If Angelos and other drug war prisoners with absurd sentences remain in prison through Obama’s second term, it will be a stain on the president’s legacy.

"Pot opponents regroup following Wash., Colo. votes"

The title of this post is the headline of this interesting new AP article which highlights how the broader public policy conversation over marijuana is starting to transform as a result of the state initiative passed back in November. Here are excerpts:

Kevin Sabet, a former White House drug policy adviser and an outspoken opponent of legalizing marijuana, watched with dismay last fall as voters in Washington and Colorado did just that.

But the next day he got a call from former Democratic U.S. Rep. Patrick Kennedy, who has struggled with alcohol and drug addiction. The son of late Sen. Ted Kennedy was worried that the votes sent the wrong message about marijuana. "The level of his concern impressed me," Sabet recalled. "He said, `We have to do something that is not falling into this false dichotomy of prohibition versus legalization.'"

So began the regrouping of the anti-pot lobby, an effort which on Thursday launches a new organization, Project SAM, for "smart approaches to marijuana." Kennedy is the chairman, and other board members include Sabet and David Frum, a former speechwriter for President George W. Bush.

"Our country is about to go down the wrong road, in the opposite direction of sound mental health policy," Kennedy said. "It's just shocking as a public health issue that we seem to be looking the other way as this legalization of marijuana becomes really glamorous."

The idea is to halt the legalization movement by arguing the U.S. can ease the ills of prohibition — such as the racial disparities in arrest rates and the lifelong stigma that can come with a pot conviction — without legalizing the drug.  Kennedy called marijuana a dangerous drug that lowers IQ and triggers psychosis in those genetically predisposed toward it; critics charged him with distorting the scientific evidence by cherry-picking studies that relate only to a tiny fraction of pot users.

"It's almost `Reefer Madness'-type stuff about marijuana he's saying," said Ethan Nadelmann, executive director of the New York-based Drug Policy Alliance. "There's something remarkable about Patrick Kennedy deciding to go after users of a drug that is by almost all accounts less dangerous than the drugs he struggled with.  Where Patrick Kennedy could have made a really important contribution is by saying that we need a responsible public health model for dealing with legal marijuana."...

The organization hopes to raise money to oppose legalization messages around the country, shape the legalization laws taking effect in Washington and Colorado, promote alternatives to jail time for pot users and speed up scientific research on the effects of marijuana....

Kennedy served 16 years as a congressman from Rhode Island, during which he made mental health treatment and insurance coverage a legislative priority.  He revealed he had struggled with depression and alcoholism, as well as addiction to cocaine and prescription painkillers.  In 2006, Kennedy crashed his Ford Mustang into a security barrier on Capitol Hill. He agreed to a plea deal on a charge of driving under the influence of prescription drugs and received a year's probation.

Low-level marijuana offenders should pay a fine, not go to prison, Kennedy said, but it's a bad idea to make pot more accessible: More people will experiment, including young people whose still-developing brains seem to be most susceptible to addiction.  He said he fears the creation of a huge marijuana industry that might target teens the way the tobacco industry did....

Marijuana remains illegal under federal law, and the Justice Department has not said whether it will sue to try to block the state-licensing schemes from taking effect.

Supporters of Washington's Initiative 502 raised more than $6 million. The measure was sponsored or endorsed by former top federal law enforcement officers in the state, as well as some former public health officials and a University of Washington addiction specialist.

Alison Holcomb, the drug policy director of the state's American Civil Liberties Union chapter and I-502's campaign manager, said she's as concerned as anyone else about the public-health ramifications of legal marijuana, and that's why the initiative requires new surveys of drug use among teens and earmarks money for substance abuse prevention and treatment.

I am glad to learn that Patrick Kennedy and the other high-profile persons involved with Project SAM are eager to ensure that we have a robust public-health conversation about marijuana. In particular, I am especially glad to hear from this piece that Project SAM (which does not yet appear to have a website) is going to work to "promote alternatives to jail time for pot users and speed up scientific research on the effects of marijuana." 

If speeding up scientific research on the effects of marijuana is going to be key part of the mission of Project SAM, I hope it will join other marijuana public policy reformers and activists in encouraging Congress and/or the Obama Administration remove marijuana from Schedule I of the Controlled Substances Act.  It has long been my understanding that scientific research on marijuana by universities and other major research institutions has been virtually impossible because cannabis is listed by federal law as a Schedule I drug under the CSA (background here).  Whatever the other goals and plans of Project SAM, I sincerely hope it will join forces with the marijuana reform community on this critically important "public health" front.

A few recent and older related posts: 

• If force to choose, would you legalize marijuana or prohibit tobacco?
• Intriguing new comments from President Obama on federal pot prohibition policy
• New report on feds' on-going debate over response to pot legalization
• "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
• Female voters seen as key to success of pot reform initiatives
• "Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity
• Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?
• Timely new Cato policy analysis on federal supremacy and pot prohibition reform
• "Will the Feds Crack Down on Pot or Look the Other Way?"
• How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
• "California inspired — and now inspired by — other states' marijuana legalization measures"
• Proof of prohibition's failings?: teens now smoke pot more than tobacco
• "Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"

California medical marijuana provider gets 10-year mandatory-minimum federal prison term

As reported in this local story, headlined "Medical marijuana: Aaron Sandusky sentenced to 10 years in federal prison," a high-profile case from federal court in California has resulted in a significant prison term today as a result of federal mandatory minimum sentencing laws.  Here are the basics:

Aaron Sandusky has been sentenced to 10 years in federal prison.  The former G3 Holistic Inc. medical marijuana dispensary president was sentenced today in U.S. District Court in Los Angeles for operating medical marijuana dispensaries in Upland, Colton and Moreno Valley.

"In this case, as the defendant was warned, the court's hands are tied," U.S. District Judge Percy Anderson said. "Whether you agree with the defendant's position or not."

Sandusky was found guilty in October of conspiracy to manufacture marijuana plants, to possess with intent to distribute marijuana plants, and to maintain a drug-involved premises; and one count of possession with intent to distribute marijuana plants, according to the U.S. Department of Justice.... 

"I want to apologize to those with me and their families who have been victimized by the federal government who has not recognized the voters of this state," Sandusky said in court.

State voters approved Proposition 215 in 1996, allowing medical marijuana in the state, while state Senate Bill 420, which details the amount of marijuana a person can possess for medical purposes, prevents cities and counties from banning marijuana dispensaries. But federal law says marijuana -- medical or otherwise -- is illegal. "I want to apologize to the families who are suffering and who have to go through this," Sandusky said.  "There are no winners here.  Not the state, not the federal government, not the patients who need medical marijuana."...

Sandusky turns 43 on Tuesday.  "It's not going to be a real happy birthday," G3 Holistic patient Christopher Kenner said.  "I hate to think this is the last time I'll see him."

Federal authorities in June arrested Sandusky and additional operators of the Inland Empire chain of marijuana stores and others associated with a warehouse, where marijuana was cultivated for the stores, on federal drug trafficking charges.  A six-count indictment returned by a federal grand jury charged three owners and operators of G3 Holistic stores. The indictment also charged three people who allegedly worked at a large grow operation in an Ontario warehouse that supplied marijuana to the three G3 stores.

I presume that Aaron Sandusky has preserved all of his potential appellate issues concerning his trial and sentencing and that he will pursue an appeal in the Ninth Circuit. Consequently, I doubt today's federal sentencing is the last chapter in his federal prosecution story.

"Have We Lost the War on Drugs?"

The title of this post is the headline of this lengthy essay which appeared in Saturday's Wall Street Journal and was authored by Gary Becker and Kevin Murphy. The subheading to the piece summarizes its themes: "After more than four decades of a failed experiment, the human cost has become too high. It is time to consider the decriminalization of drug use and the drug market." Here are just a few excerpts:

The direct monetary cost to American taxpayers of the war on drugs includes spending on police, the court personnel used to try drug users and traffickers, and the guards and other resources spent on imprisoning and punishing those convicted of drug offenses. Total current spending is estimated at over $40 billion a year.

These costs don't include many other harmful effects of the war on drugs that are difficult to quantify. For example, over the past 40 years the fraction of students who have dropped out of American high schools has remained large, at about 25%. Dropout rates are not high for middle-class white children, but they are very high for black and Hispanic children living in poor neighborhoods. Many factors explain the high dropout rates, especially bad schools and weak family support. But another important factor in inner-city neighborhoods is the temptation to drop out of school in order to profit from the drug trade.

The total number of persons incarcerated in state and federal prisons in the U.S. has grown from 330,000 in 1980 to about 1.6 million today. Much of the increase in this population is directly due to the war on drugs and the severe punishment for persons convicted of drug trafficking. About 50% of the inmates in federal prisons and 20% of those in state prisons have been convicted of either selling or using drugs. The many minor drug traffickers and drug users who spend time in jail find fewer opportunities for legal employment after they get out of prison, and they develop better skills at criminal activities....

The paradox of the war on drugs is that the harder governments push the fight, the higher drug prices become to compensate for the greater risks. That leads to larger profits for traffickers who avoid being punished. This is why larger drug gangs often benefit from a tougher war on drugs, especially if the war mainly targets small-fry dealers and not the major drug gangs. Moreover, to the extent that a more aggressive war on drugs leads dealers to respond with higher levels of violence and corruption, an increase in enforcement can exacerbate the costs imposed on society....

Usually overlooked in discussions of the effects of the war on drugs is that the illegality of drugs stunts the development of ways to help drug addicts, such as the drug equivalent of nicotine patches. Thus, though the war on drugs may well have induced lower drug use through higher prices, it has likely also increased the rate of addiction. The illegality of drugs makes it harder for addicts to get help in breaking their addictions. It leads them to associate more with other addicts and less with people who might help them quit.

Most parents who support the war on drugs are mainly concerned about their children becoming addicted to drugs rather than simply becoming occasional or modest drug users. Yet the war on drugs may increase addiction rates, and it may even increase the total number of addicts....

The decriminalization of both drug use and the drug market won't be attained easily, as there is powerful opposition to each of them. The disastrous effects of the American war on drugs are becoming more apparent, however, not only in the U.S. but beyond its borders. Former Mexican President Felipe Calderon has suggested "market solutions" as one alternative to the problem. Perhaps the combined efforts of leaders in different countries can succeed in making a big enough push toward finally ending this long, enormously destructive policy experiment.

"Plead Guilty or Go to Prison for Life"

The title of this post is the headline of this new commentary concerning the Chris Williams' case and authored by Jacob Sollum over at Reason.com.  The sub-headline is "The stark choice given a medical marijuana grower highlights the injustice of mandatory minimums," and here are excerpts:

Chris Williams, a Montana medical marijuana grower, faces at least five years in federal prison when he is sentenced on February 1. The penalty seems unduly severe, especially because his business openly supplied marijuana to patients who were allowed to use it under state law.

Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it....

For a while it seemed that Williams, who rejected a plea deal because he did not think he had done anything wrong and because he wanted to challenge federal interference with Montana's medical marijuana law, also was destined to die in prison. Since marijuana is prohibited for all purposes under federal law, he was not allowed even to discuss the nature of his business in front of the jury, so his conviction on the four drug charges he faced, two of which carried five-year mandatory minimums, was more or less inevitable.

Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively.

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal.

Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it, having recognized the toll his legal struggle was taking on his 16-year-old son, a freshman at Montana State University.

"I think everyone in the federal system realizes that these mandatory minimum sentences are unjust," Williams tells me during a call from the Missoula County Detention Facility. But for prosecutors they serve an important function: "They were basically leveraging this really extreme sentence against something that was so light because they wanted to force me into taking a plea deal." Nine out of 10 federal criminal cases end in guilty pleas.

The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?

I am glad to see the Williams' case continuing to get attention and criticism, but this commentary overlooks what strikes me as one of the worst parts of the deal with federal devil that Williams was forced to accept: in the deal, Williams waived all of his appeal rights to challenge his convictions so that he would not be able to continue with his lawful and courageous challenge to the federal laws with which he was prosecuted.

Prior posts on Williams case and related prosecutions:

• Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider
• Montana medicial marijuana activist gets (way-below-guideline?) probation sentence

Latest USSC data on retroactivity of crack guidelines reduced by FSA

I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity."  The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."

Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive.  That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). 

Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons.  The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data. 

Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around.  If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.

"Empirical evidence suggests a sure fire way to dramatically lower gun homicides: repeal drug laws"

The title of this post is drawn from the title of this lengthy must-read post by Dan Kahan over at The Cultural Cognition Project blog. The post not only satiates my desire to have some distinct (and seemingly more productive) discussions about gun violence in the wake of the Newtown massacre than being provided by traditional media outlets, but it also makes a bunch of points that ought to be of interest to all persons on all sides of the tired-old gun-control debates. Dan's terrific post should be read in full, and I hope this taste (with some of his many links) will encourage everyone to click through to it:

I now want to point out that in fact, while the empirical evidence on the relationship between gun control and homicide is (at this time at least) utterly inconclusive, there certainly are policies out there that we have very solid evidence to believe would reduce gun-related homicides very substantially.

The one at the top of the list, in my view, is to legalize recreational drugs such as marijuana and cocaine.

The theory behind this policy prescription is that illegal markets breed competition-driven violence among suppliers by offering the prospect of monopoly profits and by denying them lawful means for enforcing commercial obligations.

The evidence is ample.  In addition to empirical studies of drug-law enforcement and crime rates, it includes the marked increase in homicide rates that attended alcohol prohibition and the subsequent, dramatic deline of it after repeal of the 18th Amendment.

Actually, it's pretty interesting to look at homicide rates over a broader historical time frame than typically is brought into view by those who opportunistically crop the picture in one way or another to support their position for or against gun control.  What you see is that there is a pretty steady historical trend toward decline in the US punctuated by expected noisy interludes but also by what appear to be some genuine, and genuinely dramatic, jumps & declines.

One of the jumps appears to have occurred with the onset of prohibition and one of the declines with repeal of prohibition. Social scientists doing their best to understand the evidence generally have concluded that that those are real shifts, and that they really were caused by prohibition and repeal.

Criminologists looking at the impact of drug prohibition can use the models developed in connection with alcohol prohibition and other modeling strategies to try to assess the impact of drug prohibition on crime.  Obviously the evidence needs to be interpreted, supports reasonable competing interpretations, and can never do more than justify provisional conclusions, ones that are necessarily subject to revision in light of new evidence, new analyses, and so forth.

But I'd say the weight of the evidence pretty convincingly shows that drug-related homicides generated as a consequence of drug prohibition are tremendously high and account for much of the difference in the homicide rates in the U.S. and those in comparable liberal market societies....

There is a very interesting empirical study, though, by economist Jeffrey Miron, who concludes that the available evidence is consistent with the hypothesis that the difference in homicide rates in the US and in other liberal market societies is attributable to our drug prohibition policies.  Gun availability in the US, according to this hypothesis, doesn't directly account for the difference in homicide rates between the US and these countries; rather, gun availability mediates the impact between drug prohibition and homicide rates in the US, because the criminogenic properties of drug prohibition create both a demand to murder competitors and a demand for guns to use for that purpose....

Repealing drug laws would do more -- much, much, much more -- than banning assault rifles (a measure I would agree is quite appropriate); barring carrying of concealed handguns in public (I'd vote for that in my state, if after hearing from people who felt differently from me, I could give an account of my position that fairly meets their points and doesn't trade on tacit hostility toward or mere incomprehension of whatever contribution owning a gun makes to their experience of a meaningful free life); closing the "gun show" loophole; extending waiting periods etc.  Or at least there is evidence for believing that, and we are entitled to make policy on the best understanding we can form of how the world works so long as we are open to new evidence and aren't otherwise interfering with liberties that we ought, in a liberal society, to respect.

Prior related posts following Newton masacre:

• Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
• "Smart Gun Technology Could Have Blocked Adam Lanza"

Celebrity witness for high-profile (and interesting) federal sentencing appeal

I have blogged a good deal about the long-running federal criminal travails of Cameron Douglas, in part because the involvement of celebrities at sentencing is intriguing and in part because of the many legal and social issues raised by the seemingly lenient sentence Cameron Douglas was given at his first federal sentencing and the seemingly harsh sentence he got the second time around (some backstory here). 

Today, all these travails came before the Second Circuit for oral argument.  This new AP article about the argument hints that a notable reasonableness ruling might be in the offing:

Michael Douglas was among spectators Wednesday as an appeals court panel heard attorneys argue whether his son was treated too harshly when he was sent to prison for nearly 10 years for drug crimes.  The actor sat in the back of a Manhattan courtroom the size of a basketball court as three judges from the 2nd U.S. Circuit Court of Appeals heard attorney Paul Shechtman complain that Cameron Douglas got the stiffest sentence ever — 4 1/2 years in prison — for being caught with drugs in prison. The time was added last year to a five-year prison sentence Cameron Douglas was already serving....

The appeals panel, unlikely to release a written opinion for weeks or even months, did not indicate through its questions whether it will order a resentencing.  Like the sentencing judge, it seemed troubled by crimes Cameron Douglas, 34, committed after he was given leniency in return for cooperating against two of his former drug suppliers.  Without the benefit of cooperation, he would have faced a mandatory 10-year prison term after he pleaded guilty to narcotics distribution charges on Jan. 27, 2010.

Shechtman said only 2 percent of inmates are prosecuted when they are caught with drugs behind bars.  And he said the Bureau of Prisons had already punished Cameron Douglas with 11 months in segregation and by taking away nearly three months of good behavior credit.

Assistant U.S. Attorney Justin Anderson said Judge Richard M. Berman properly considered the unique characteristics of Cameron Douglas' crimes.  Cameron Douglas has admitted that he had a girlfriend sneak drugs to him after he was first arrested and was staying at his mother's place under tight bail conditions and that he convinced a female lawyer who had a romantic interest in him to sneak drugs to him in prison.  He also has admitted continuing to use drugs in prison.  "Extraordinary cases require extraordinary sentences," Anderson said....

Judge Guido Calabresi asked Anderson why Berman was not entitled to impose a sentence that was double what prosecutors were requesting and was nearly five times what the Probation Department recommended after he became disappointed with the number of chances Cameron Douglas had squandered.  Judge Gerard Lynch said it was understandable that Berman would think: "This guy got a big break and he screwed up."

Shechtman called Cameron Douglas' behavior "purely the conduct of an addict."  Lynch asked whether Berman was entitled to say drug offenders "have to clean up their act and I'm not going to see addiction as a justification."

Shechtman said he was not suggesting his client should not be punished but rather "54 months is an unreasonable sentence."

Prior posts concerning Cameron Douglas's federal sentencings:

• Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?
• Cameron Douglas sentenced to five years for federal drug offense
• "Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"
• Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?
• Stiff sentence given to Cameron Douglas for drug possession while in prison
• Celebrity federal drug sentencing appeal prompts doctors' brief urging treatment over punishment

Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider

As reported in this local article, headlined "In plea deal, most of marijuana caregiver's convictions to be dropped," there has been a notable (and disturbing?) development in a notable (and disturbing?) federal criminal case involving a Montana medical marijuana provider.  Here are the details:

In a highly unusual move, federal prosecutors have agreed to drop six of eight marijuana convictions for Christopher Williams in exchange for his agreeing to waive his right to appeal.  In addition, the government has agreed to ask U.S. District Judge Dana Christensen to dismiss the $1,728,000 criminal forfeiture awarded to the government by a jury earlier this year.

The agreement was outlined under a settlement filed Tuesday in U.S. District Court.  In the document, signed by Williams, U.S. Assistant Attorney Joe Thaggard, and federal public defender Michael Donahoe, they note that this agreement “constitutes the final and best offer to resolve this matter.”

Williams, a medical marijuana caregiver, was convicted by a 12-member jury in September after a four-day trial.  He was facing a minimum mandatory sentence of between 85 and 92 years, due in part to four counts that involved possessing a firearm in furtherance of a drug trafficking crime.  Sentences for those counts, by law, had to run consecutively.

Immediately after his conviction, Thaggard had offered to drop some of the charges, but they still involved a 10-year mandatory minimum sentence.  Williams rejected the offer, saying he was willing to spend the rest of his life in prison to fight what he believed were violations of his constitutional rights.

Under the newest deal, the federal government dropped convictions for conspiracy to manufacture and possess with the intent to distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; and three counts of possessing a firearm in furtherance of a drug trafficking crime.  His convictions for one count of possessing a firearm in connection with drug trafficking and one count of possession with intent to distribute marijuana will stand.

He faces a maximum term of five years for the distribution of marijuana charge and a mandatory minimum of five years — and a maximum of life — for the firearm-related charge.

Kari Boiter, a friend of Williams, reported late Tuesday that she had talked to him via a phone call.  He was incarcerated at the time at the Missoula County Detention Facility. Boiter says Williams told her it wasn’t easy for him to give up his constitutional fight, but as he navigated the complex federal penal system, it became clear that punishment was the only thing that was guaranteed.

“With the rest of my life literally hanging in the balance, I simply could not withstand the pressure any longer,” Williams said in a statement released by Boiter.  “If Judge Christensen shows mercy and limits my sentence to the five year mandatory minimum, I could be present at my 16-year-old son’s college graduation.  This would most likely be impossible had I rejected the latest compromise.”

Williams was a partner in Montana Cannabis, which operated distribution centers in Helena, Billings, Miles City and Missoula, and had a large marijuana greenhouse west of Helena on Highway 12.  The four partners — Williams, Chris Lindsey, Thomas Daubert and Richard Flor — said they tried to set the “gold standard” for medical marijuana businesses after voters overwhelmingly passed legislation in 2004 permitting caregivers to distribute marijuana to people with physical ailments.

But under a federal crackdown in March 2011, Montana Cannabis was one of about 25 medical marijuana businesses that were raided, since marijuana is still considered a Schedule 1 narcotic under federal laws. Williams is the only person in Montana to take his case all the way to trial.

Daubert, Lindsey and Flor all pleaded guilty to various marijuana possession and distribution charges. Daubert received a sentence of five years on probation; Lindsey is expected to be sentenced Jan. 4 and prosecutors have agreed to seek a sentence similar to Daubert’s based upon Lindsey’s health problems and limited involvement in Montana Cannabis. Flor, who was sentenced to 10 years in prison, died from health-related complications while incarcerated....

It’s unknown whether Williams’ sentencing hearing, slated for Jan. 4 in Missoula, will still take place on that date.

As a matter of equitable substantive sentencing justice, I am very pleased to learn that Chris Williams is no longer facing a federal mandatory sentence of essentially LWOP for distrubuting marijuana in compliance with Montana law. But as a matter of constitutional law and federal criminal procedure, I find this new novel "sentencing settlement" disturbing from various perspectives. Let me explain:

Start with the government actors: though federal prosecutors have broad charging and bargaining discretion, what gives them authority to drop 75% of presumptively lawful convictions after a presumptive lawful jury trial?  Unless and until prosecutors articulate a constitutional or legal reason for dropping thse convictions, this decision appears to be a form of "prosecution nullification" that strikes me even more lawless than "jury nullification."  Prosecutors frequently contest and complain about the power of juries to nullify a prosecutor's criminal charges based on equitable rather than legal claims; here is appears that federal prosecutors are deciding to nullify a jury's criminal convictions based on equitable rather than legal claims.  

Even more worrisome, federal prosecutors in this case are going to nullify 75% of presumptively lawful convictions after a presumptive lawful jury trial in order to secure a deal to avoid any appellate scrutiny of the (also suspect?) convictions to be preserved.  If federal prosecutors believe there is a sound legal or equitable basis for dropping some of these convictions, why not just drop them without demanding anything in return from the defendant rather than requiring him to give up his statutory rights to appeal his other convictions and sentence?  Prosecutors here are not merely nullifying many jury convictions, but they are doing so only after essentially blackmailing the defendant to give up his rights to contest his other convictions on appeal.

Turning to the defense side:  though I completely understand why Chris Williams (especially after a few months in federal lock-up) decided to give up right to an uncertain appeal in order to avoid the prospect of a certain mandatory LWOP federal sentence, I am not sure how his attorneys can feel fully comfortable representing this deal as a knowing and voluntary settlement.  Based on the comments from the defendant quoted above, it seems plain to me that Chris Williams was essentially coerced by the threat of an extreme (and I think unconstitutional) sentence into giving up his appeal rights.  The jury convictions and the extreme mandatory sentencing terms here functioned in this case as a kind of legal sword of Damocles hanging over the defendant's head; Williams appears to have decided to accept this "sentencing settlement" waiving appeal rights only because prosecutors kept swinging this sword past his neck.

Especially because I want Chris Williams to be able to go to his 16-year-old son’s college graduation, I do not want to prevent him from getting the obvious benefit of this deal.  But because I also want Chris Williams to be able to pursue on appeal all his constitutional claims on all his convictions and sentence, I hope the judge in this case accepts this novel "sentencing settlement" while striking the waiver of appeal rights as, in this setting, void as against public policy.

Intriguing new comments from President Obama on federal pot prohibition policy

As reported in this notable new Washington Post piece, the President of the United States had some notable new things to say about marijuana reform policy in a notable new interview slated to be broadcast this evening.  Here are the details:

In an interview with ABC News, President Obama told Barbara Walters that recreational pot smoking in states that have legalized the drug is not a major concern for his administration.   “We’ve got bigger fish to fry,” Obama said of marijuana smokers in Colorado and Washington, the two states where recreational use is now legal.

“It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal,” he said.

Under Obama, the Drug Enforcement Administration has aggressively gone after medical marijuana dispensaries in California, where they are legal.  In September, federal officials raided several Los Angeles shops and sent warnings to many more.

“This is a tough problem, because Congress has not yet changed the law,” Obama told Walters of the legalization in Colorado and Washington.  “I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”

Attorney General Eric Holder said in a speech Wednesday that he would announce a policy on the new state laws “relatively soon.” The president, who smoked pot often in high school, told Walters that he does not support general legalization “at this point.”

“There are a bunch of things I did that I regret when I was a kid,” Obama told Walters. “My attitude is, substance abuse generally is not good for our kids, not good for our society.”

The phrases I have highlighted above suggest to me that Prez Obama is most eager to (and in my view, most wise to) take a "wait and see" approach to federal marijuana policy reforms.  This approach, I suspect, is likely to pay particular attention to any and all evidence about whether and how state marijuana legalization impacts substance abuse realities. 

Supporters of pot prohibition reform would be wise now to try to document whether and how marijuana legalization in Colorado and Washington has an impact on substance abuse dynamics.  Any evidence that legalization of marijuana actually makes it easier to restrict drug access to kids or to get heavy drug users into treatment could go a long way toward making it easer for the Obama Adminstration to embrace federal reforms.   In addition, and in line with recent data trends in this area (as reported in this post), supporters of pot prohibition reform would be wise to document any and all evidence that marijuana legalization leads folks to use/abuse less frequently other legal but risky drugs like tobacco and alcohol and pain killers.

In short, I read Obama's comments as early evidence that his administration is prepared to adopt an evolving public health approach to these matters rather than a rigid crime and punishment view.  I hope I am right in this assessment, because that is how I think these complicated and contingent social and legal issues should be considered.

A few recent and older related posts: 

• New report on feds' on-going debate over response to pot legalization
• "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
• Female voters seen as key to success of pot reform initiatives
• "Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity
• Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?
• Timely new Cato policy analysis on federal supremacy and pot prohibition reform
• "Will the Feds Crack Down on Pot or Look the Other Way?"
• How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?

New Urban Institute reports examine increases in federal prison population

I received via e-mail today news of a new report by the Urban Institute’s Justice Policy Center concerning increases in the size of the federal prison system.  Here is a snippet fromt the e-mail, which includes reactions from key federal legislators:

The Growth & Increasing Cost of the Federal Prison System: Drivers and Potential Solutions states that federal prisons currently house 218,000 inmates, which is almost ten times the number incarcerated in 1980.  Drug offenders make up more than half of the prison population, and the length of drug offender sentences is a major driver of population growth and prison costs.

“Overcrowded prisons do more than just jeopardize the safety of prisoners and staff: they also restrict the ability to offer rehabilitative programs designed to reduce reoffending,” noted Nancy La Vigne, director of the Urban Institute’s Justice Policy Center and a lead author of the paper....

In the report, the authors note that state justice systems demonstrate useful examples of how to trim spending without detracting from public safety. Adjusting sentencing practices and prison release policies for drug offenders, for example, could alleviate some stress on the federal prison system.

"This report demonstrates the need to address the safety and cost issues caused by the growth of the federal prison population. Republicans and Democrats in Congress and in the administration need to come together to address this issue in a bipartisan effort," said Rep. Frank Wolf (R-VA), chairman of the House Appropriations Commerce, Justice, Science, and Related Agencies Subcommittee.

“The unsustainable growth in federal prison costs is crowding out other law enforcement priorities. I welcome this new, important report, which shows the need for common sense reforms that protect the public safety while minimizing corrections costs for taxpayers,” said Sen. Sheldon Whitehouse (D-RI), chairman of the Senate Judiciary Crime and Terrorism Subcommittee.

The full report discussed in this e-mail is available at this link and runs only eight pages.  Some of its coverage appears to build off this related Urban Institute publication, which is titled "Examining Growth in the Federal Prison Population, 1998 to 2010," and is 34 pages long.

Noting the potency of voter initiatives in pot prohibition reform

I have long been a big fan of direct democracy, not only because some forms of legal reform often seem only possible through the initiative process, but also because often officials seem to be more respectful of these reforms because they represent the direct voice of the people.  This reality is reflected in a quote from a Republican member of Congress in this new piece from The Hill, which is headlined "New marijuana laws cause confusion."  Here are excerpts:

Marijuana has been a centerpiece of the federal government’s “war on drugs,” aimed at cracking down on drug use in the United States.  But the growing number of people who support the decriminalization of pot — which is still legally classified nationally in the same category as heroin — has some policymakers in Washington, D.C., rethinking their approach.

“The voters of Colorado have spoken,” said Rep. Mike Coffman (R-Colo.) in an interview with The Hill.  “I’m certainly opposed to the direction that the state is going, but I respect the will of voters and the process.

“Either the Justice Department needs to recognize, in its enforcement, the state’s right to choose, or we need conforming legislation at a federal level.”...

The Drug Enforcement Agency (DEA) told The Hill that while it has not received any revised investigatory directives from the administration since the laws were enacted, the agency prioritizes large-scale cultivation and distribution networks over smaller personal use and distribution when it considers which cases to spend time and money on....

Former President Jimmy Carter said on Tuesday, during a CNN forum, that he supports legalizing marijuana.  On the several occasions Obama, through social networks, has asked the public for its questions, participants have voted overwhelmingly in favor of marijuana legalization as the leading topic. But the administration has been quiet for the past month, holding several private discussions with the governors of Colorado and Washington while maintaining a public approach of wait-and-see....

Both Colorado Gov. John Hickenlooper (D) and Washington Gov. Christine Gregoire (D) have talked with either Attorney General Eric Holder or Deputy Attorney General James Cole within the past month, but have received no assurances of any progress, according to spokesmen for the governors.

A looming concern for the governors is that their states will spend a good deal of time and money in an effort to conform with the new laws — building a new tax and regulatory structure, incorporating the sale of marijuana into commerce laws and training law enforcement officers to test the THC levels of drivers — only to have the DOJ continue to prosecute criminal marijuana cases involving their voters. “We don’t want to get so far down the road and then have the process stopped,” said Cory Curtis, a spokesman for Gregoire. “If we’re stopped in the eleventh hour and we’ve already put in the money, which is several million dollars, we’d rather know on the front end. And for citizens, they should be able to know what the ground rules are,” Curtis said....

Anticipating their role in helping to iron out the differences between the state and federal law, a small group of members is supporting a legislative fix put forward by Rep. Diana DeGette (D-Colo.) that would allow a state’s marijuana laws not to be trumped by federal drug laws.

DeGette has been talking with Hickenlooper at length, as well as with Republicans, about a bill she introduced two weeks ago, which already has Coffman and Rep. Ron Paul (R-Texas) as co-sponsors. Rep. Dana Rohrabacher (R-Calif.), an avid supporter of decriminalizing marijuana, told The Hill that he would also be in favor of backing the bill.

But not all Republicans are convinced that legalizing marijuana is the correct approach. A spokesman for Rep. Scott Tipton said the Colorado Republican has “serious concerns” about the damaging effect the law could have on children, and is waiting for the DOJ and Hickenlooper to finish their discussions on the issue.

I am fairly certain that federal representatives would not be working quite so hard to accomodate these state reforms if they did not so obviously represent the will of the majority expressed in a big election.  Indeed, I think it is a telling and significant contrast in politics and policy in how the feds are now responding to state pot reform passed by initiative as opposed to how the feds responded previously to state immigration reforms based by representative.

Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratio

The Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 (7th Cir. Dec. 4, 2012) (available here), in response to a defendant's claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel's discussion in Matthews:

On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court’s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. § 3553(a)(6) (instructing district courts to consider whether a sentence results in “unwarranted sentence disparities”).

We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews’s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85, 109 (2007), and Spears v. United States, 555 U.S. 261 (2009). Moreover, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).

Prosecutions dropped: the first tangible legal impact of marijuana legalization in Washington

This local piece, headlined "Marijuana prosecutions dropped in anticipation of legalization," reports on what seems to be the first legal consequence of the marijuana legalization initiative passed in Washington state. Here are the details:

Prosecutors and police in Washington moved Friday to swiftly back away from enforcing marijuana prohibition, even though the drug remains illegal for another month.   On Friday, the elected prosecutors of King and Pierce counties, the state's two largest, announced they will dismiss more than 220 pending misdemeanor marijuana-possession cases, retroactively applying provisions of Initiative 502 that kick in Dec. 6.

In King County, Dan Satterberg said his staff will dismiss about 40 pending criminal charges, and will not file charges in another 135 pending cases.  Pierce County Prosecutor Mark Lindquist said he will dismiss about four dozen cases in which simple marijuana possession was the only offense. "I think when the people voted to change the policy, they weren't focused on when the effective date of the new policy would be.  They spoke loudly and clearly that we should not treat small amounts of marijuana as an offense," Satterberg said.

The Seattle police and King County sheriff also announced Friday their departments would no longer arrest people for having an ounce or less of marijuana, the amount decriminalized by Initiative 502, which passed Tuesday....

Misdemeanor marijuana possession had not been a police priority in Seattle for years, but a study released in October found it was elsewhere: more than 241,000 people statewide were arrested for possession over the past 25 years, at an estimated cost of more than $305 million....

In interviews, Satterberg and Lindquist said their decisions do not amount to a free pass for marijuana, and the number of cases were so small that it won't save much money. But both said their decision reflected the voters' intent in passing I-502's decriminalization of marijuana for people 21 and over, and for an ounce or less....

The maximum penalties for misdemeanor marijuana possession are 90 days in jail, with one day mandatory, and a $1,000 fine, although most cases are resolved for less.

Snohomish County Prosecutor Mark Roe said in an email that his staff had put marijuana cases "on hold" before the election, and will decide how to handle them after speaking with other prosecutors at an upcoming meeting. After budget cuts, Roe said his staff has focused on more serious cases. "It simply hasn't been a big part of our work," he said....

Prosecutors across the state will decide whether charging possession cases would be contrary to "the new known intent of the law," said Tom McBride, executive director of the Washington Association of Prosecuting Attorneys.  He doubted that prosecutors would agree to overturn existing marijuana possession convictions, and prosecutors could clearly enforce existing law up until Dec. 6. "It is an equitable decision, not necessarily a legal one," he said.

Other agencies are also sorting out I-502's implications. The UW and Western Washington University reaffirmed that marijuana use on campus would still be banned, even after Dec. 6, because of zero-tolerance strings attached to federal funding.

Voters call for experimenting with pot in the state laboratories of Colorado and Washington

I thought it would be remarkable and remarkably important if voters in just one state through the ballot initiative process had legalized marijuana.  But, as reported in this NBC News piece headlined "Colorado, Washington approve recreational marijuana use," it appears voters in two states are ready to experiment with ending pot prohibition. Here are the basics:

Voters in Colorado and Washington on Tuesday approved measures allowing adults to use marijuana for any purpose, NBC News projected, marking an historic turning point in the slow-growing acceptance of marijuana usage.

In Massachusetts, voters also approved an initiative allowing people to use marijuana for medicinal purposes, NBC News projected. In Arkansas, a similar initiative failed, according to NBC News projections....

The laws legalizing marijuana for recreational or other purposes could face federal challenges, because marijuana possession is still a federal crime. But so far, the Justice Department has declined to discuss how it might react if the laws pass....

Opponent Kevin Sabet, a former senior advisor to the Obama administration and an assistant professor at the University of Florida’s college of medicine, said he was expecting legal challenges at the state and federal level. “This is just the beginning of the legalization conversation, so my advice to people who want to toke up legally or think that they can buy marijuana at a store tomorrow is that we’re a very long way from (that),” Sabet said.

Proponents of the legislation also said they expected some legal wrangling. “It sets up a clear and obvious challenge with the federal government,” said Allen St. Pierre, executive director of NORML, which has fought for years to legalize cannabis.

But proponents also were celebrating what they saw as a turning point in a long-running battle to make marijuana more available to the general public. “We are reaching a real tipping point with cannabis law reform,” said Steve DeAngelo, a longtime advocate for legalizing marijuana and the director of the nation’s largest medical cannbabis dispensary, Harborside Health Center in Oakland, Calif.

Colorado Gov. John Hickenlooper acknowledged legal challenges but said the state would work to resolve the conflict between federal and state laws. "It's probably going to pass, but it's still illegal on a federal basis. If we can't make it legal here because of federal laws, we certainly want to decriminialize it,” he told NBC’s Brian Williams.

This lengthy Huffington Post article discusses these developments and the intricacies of the legal process going forward in Colorado.   This piece also includes this amusing reaction to the Colorado outcome:

Colorado Gov. John Hickenlooper, a vocal opponent to the measure, reacted to the passage of A64 in a statement late Tuesday night: "The voters have spoken and we have to respect their will. This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or gold fish too quickly."

If final polls are accurate, marijuana will soon be legal in Colorado (according to state law)

As reported in this TPM posting, two new polls from Colorado both showed majority support for the state's marijuana legalization ballot initiative:

A ballot measure to legalize marijuana in Colorado is seeing consistent support according to a pair of polls released Monday.  The first poll, from Democratic-leaning Public Policy Polling, showed support for Amendment 64 at 52 percent and opposition at 44 percent -- a gap two points smaller than PPP's previous poll from late October.  A SurveyUSA poll showed support at 50 percent and opposition at 44 percent, the first time support has reached the 50 percent mark in that firm's polling since mid-September....

PPP's poll, conducted from Nov. 3-4, surveyed 1,096 likely Colorado voters through automated telephone interviews and had a margin error of 3.0 percent.  SurveyUSA's poll, conducted on Oct. 28, surveyed 695 likely voters via landlines and cell phones and had a margin of error of 3.8 percent.

UPDATE: Commentors have rightly noted that pot will be legal only under state law and will still be illegal under federal law no matter what Colorado voters do. I have added to my post title to be more accurate.

"The End of Laughing at Marijuana Reformers"

The title of this post is the headline of this new piece at The Atlantic, which gets started this way:

Voters in Colorado, Oregon and Washington will decide on election day whether to legalize marijuana in their states. All three initiatives have a chance of passing, and two are ahead in polls. In Massachusetts and Arkansas, voters may legalize medical marijuana. And last year, a Gallup poll found that a majority of American voters supported legalizing marijuana for the first time.

The political taboo against marijuana has been fading for awhile. When Bill Clinton admitted he'd smoked weed as a college student, he felt the need to add that he hadn't inhaled, and observers still wondered if it would cost him votes. Barack Obama admitted that he did inhale as a college student. Yet his personal history with narcotics hasn't stopped him from presiding over a draconian War on Drugs and responding to several questions about drug reform with jokes.

It's hard to believe dismissiveness of that sort can last much longer. A state measure legalizing marijuana would signal a huge shift in public opinion and force the federal government to react. And whatever happens at the ballot box this November, a clever nonprofit is highlighting the fact that more and more prominent people of diverse ideological backgrounds say reform is needed.

"How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison"

The title of this post is the headline of this new commentary authored by US District Judge Mark Bennett and published in The Nation. Here are is how it gets going:

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA.  Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release.  The majority of these women, men and young adults are nonviolent drug addicts.  Methamphetamine is their drug of choice.  Crack cocaine is a distant second.  Drug kingpins? Oh yes, I’ve sentenced them, too.  But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa — a bucolic area home to just one city with a population above 100,000 — is a sleepy place with few federal crimes.  You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge.  Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco — combined.  While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine.  More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine.  Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African-Americans.  Meth defendants are generally lower-income whites.  More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence.  These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights.  Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine.  They are the low-hanging fruit of the drug war.  Other than their crippling meth addiction, they are very much like the folks I grew up with.  Virtually all are charged with federal drug trafficking conspiracies — which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth.  They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges.  All of them pled guilty.  Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions.  Most were unemployed or underemployed.  Several were single mothers.  They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment.  Yet all of them faced mandatory minimum sentences of sixty or 120 months.  One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum.  She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison.  It is deeply inspiring to see the positive changes most have made.  Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around.  They are shocked — and glad — to see me, and it’s important to them that people outside prison care about their progress.  For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do.  I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless.  They destroy families and mightily fuel the cycle of poverty and addiction.  In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.