Friday, January 16, 2015

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

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

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

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

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

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

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

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

Tuesday, January 13, 2015

Senator Grassley queries DOJ concerning its work with Clemency Project 2014

Josh Gerstein has this notable new piece up at Politico headlined "Grassley questions Obama commutation drive," about a notable new inquiry directed to Attorney General Holder concerning the Obama Administration's (quirky?) efforts to ramp up its clemency activities. Here are excerpts:

New Senate Judiciary Committee Chairman Sen. Chuck Grassley is questioning the arrangements surrounding President Barack Obama's drive to shorten the sentences of some drug convicts.

In a letter sent Tuesday to Attorney General Eric Holder, the Iowa Republican asks for information about the relationship between the Justice Department and "Clemency Project 2014" — a consortium of outside groups formed in response to calls from administration officials to help federal prisoners prepare applications for the clemency effort.

"I am unaware of any time in history in which the Department of Justice has delegated any of these core attributes of presidential power to private parties beholden to no one, and who have their own agendas that may not coincide with the President's," Grassley wrote in the letter (posted here). "When private parties are wrongly given the ability to exercise any role in that public trust, then both the fairness of the pardon process and the appearance of its fairness are jeopardized."

Grassley's letter draws in large part on a POLITICO story last week which said that the new effort is struggling with more than 25,000 requests from inmates and that lawyers involved in the project have suggested applicants which route their clemency petitions through the project will stand a better or faster chance of favorable action than those who submit applications independently. The project—run by the American Civil Liberties Union, the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers— is also screening applications and weeding out those it considers unmeritorious under criteria the Justice Department set forth last April.

"Please tell me what formal arrangements exist between the Department and the Clemency Project 2014 to coordinate the processing of pardon applications, including what direction Clemency Project lawyers are given, what actions they take for the Department, and, how, if at all, Department of Justice lawyers consider the work product provided by these organizations or follow their recommendations," Grassley wrote. The senator also asks if anyone in the Justice Department is aware of statements suggesting those who submit applications through the project will have "superior access to the Department's pardon process."...

Grassley's letter refers to "pardon applicants," but the petitions prisoners are submitting are actually requests for commutations — a form of executive clemency that serves to shorten a prisoner's sentence.

The president can grant a commutation to anyone for virtually any reason. However, such applications are traditionally routed through the Justice Department's Office of the Pardon Attorney, which prepares recommendations and sends them to the department's No. 2 official, who forwards them to the White House.

The new commutation drive the Justice Department announced last year is aimed largely at paring back the sentences of convicts sent to prison for long terms relating to trafficking in crack cocaine. Those prisoners tend to be disproportionately minority as compared to those convicted of handling powdered cocaine. A law Obama signed in 2010 reduced that disparity for defendants sentenced after that time, but it was not retroactive.

The full Grassley letter is quite interesting, and not just because it gives some grief to Obama Administration about how it appears to be approaching its latest clemency push.  The letter asked a host of hard questions about what exactly DOJ and Clemency Project 2014 are up to, while also asserting in a final paragraph that "[j]ustice in the award of presidential pardons requires a transparent, fair process." And, unsurprisingly, the letter does not mention the sad reality that presidential clemency actions of the last two presidents have involved nothing resembling a "transparent, fair process."    

Among other notable aspects of this letter, Senator Grassley's obvious interest in these matter suggests that clemency issues are likely to be raised in some way during the upcoming confirmation hearings for AG Holder's replacement.  

January 13, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, January 05, 2015

"Is Obama Finally Ready To Dial Back The War On Drugs?"

Meme1The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:

Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term.  Safely re­elected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective.  As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years.  Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:

Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting state­licensed growers and retailers.  Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...

Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.

Sentencing Reform.  Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums.  Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....

Clemency.  After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions.  Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations.  Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....

A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division.  A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration.  The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.

If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence.  He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress.  And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....

If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization.  Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.

This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.

On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.

On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.

January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, January 03, 2015

"How did a law to regulate heroin traffic turn into the costly, futile War on Drugs?"

150102_schneider_heroin_wikimedia1The title of this post is the subtitle of this lengthy Politico magazine feature carrying the headline "A Hundred Years’ Failure." These titles highlight the basic themes of an article that reviews lots of interesting parts of the modern drug war's back-story, giving special emphasis to opiates and heroin along the way.  Here are a few excerpts from a piece that merits a read in full:

Twenty-five years ago, the stated goal of the United States’ anti-narcotic efforts according to the Department of Justice was to “disrupt, destroy and dismantle drug trafficking enterprises.” That same year, the U.S. government pumped almost $8 billion into anti-drug efforts, including $600 million in prison construction alone. It was just a typical fiscal year during the height of the drug war. But two and a half decades later, despite this dizzying spending, we don’t need a drug czar to tell us—even though one of them has—the war on drugs, by its own measures, has been a century-long failure.

A hundred years ago this month, the U.S. government started this fight to rid us of the scourge of opiates. Today, not only have we failed to control drug demand, an entirely new breed of opiate epidemic has flourished in the face of the most draconian drug laws in the world. Aided by aggressive Big Pharma marketing and enthusiastic “pain specialists,” opiate abuse has simply taken on a new shape, moving from urban enclaves and overrunning pockets of New England and the South, from rural Vermont to the suburbs of Dallas, that have little history of widespread drug abuse. Heroin today is cheaper and purer than it was 50 years ago. That’s to say nothing of the 700 percent increase in incarceration of American citizens in the past four decades, the distribution of nearly $450 million worth of military equipment that is used by local and state law enforcement agencies (that “militarization of the police” you’ve been reading so much about lately), and the creation of a wasteful, labyrinthine bureaucracy dedicated to what has proven a perhaps impossible goal: The eradication of drugs....

At the beginning of the 20th century, everyone’s medicine cabinet contained opium in some form. Patent medicines mixed alcohol and opium, and women used them for menstrual cramps, coughs and other minor symptoms, as well as for infants’ teething pains. Aging Civil War veterans self-injected morphine to soothe old wounds, and physicians dosed patients liberally with opium pills and morphine. Opium smokers, usually Chinese, but also habitués of the urban underworld and the occasional slumming college student, were the most common recreational users....

During the Progressive Era, a culture war was raging over sexuality, alcohol and modern life—as seen in efforts to censure pornography and eliminate “red light” districts—and prohibition offered the best hope of legislating moral certainty. While alcohol prohibition had the largest domestic constituency, drug prohibition fit with foreign policy interests. Years of lobbying by religious groups in both the United States and Britain, who were appalled at opium smoking in China and places to which the Chinese emigrated, culminated in the 1912 Hague Convention, where a dozen countries agreed to regulate the international narcotics traffic and signatories promised to limit opiate use in their own countries....

After a century of aggressive policing, mandatory minimums and enforcement that disproportionately targeted the most marginalized of American citizens, the failure of the war on drugs is ultimately a cautionary tale about pursuing an agenda at any cost—financial or human. From the founding of a vast bureaucratic infrastructure to support the new war, to the hundreds of millions of dollars spent on military police equipment, to the $50 billion spent annually on incarceration, the story of fighting addiction in America has brought out its mirror image: An irrational dependence, despite all logic to the contrary, on a steady flow of government cash and brute enforcement.

We should have just said no.

January 3, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, December 26, 2014

South Dakota legislator suggests using drug war proceeds to fund public defenders

This local article, headlined "Hickey: Use seized drug money for public defender," reports on some notable public advocacy by a public official concerning public defenders in South Dakota.  Here are the details:

A Sioux Falls lawmaker wants to use seized drug money to help pay the legal defense bills of those who can't afford a lawyer, but the state's attorney general says counties should look elsewhere to save money on court-appointed attorney costs.

Rep. Steve Hickey, R-Sioux Falls, says the money in the state's Drug Control Fund is correctly used to tackle the problem of drug use, but he says he worries about the legal costs counties bear after the arrest. The fund is made up of money seized during drug investigations and money from the sale of seized property, such as vehicles.

"My thought is that we should put some of that money not just into catching more bad guys, but put some of it into the cost of defending them we're stuck with afterward," Hickey said. "We get excited about sobriety checkpoints and saturation patrols, but after those tickets get written, someone has to pick up the tab."

Hickey's bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 percent and 50 percent of it toward the legal fees amassed by counties. The fund is administered by Attorney General Marty Jackley's Office, which decides where the seized money is spent. "It seems to me that there's very little oversight," Hickey said....

Counties are legally obligated to offer court-appointed lawyers to the indigent. Local governments can ask that legal fees be repaid, but many bills go unpaid, either because defendants don't earn enough or own enough to pay or because they go to prison or jail.

Hickey's proposal comes alongside growing concerns over court-appointed attorney fees in Minnehaha County. Commissioners want judges to consider income guidelines when deciding whether to appoint a public defender, and they've offered a county employee to check defendants' income statements.

The state's largest county has spent $3.8 million on indigent defense this year, but reimbursements from defendants stand at $824,000. The county also has more than $26 million in liens on defendants who haven't paid their bill.

Commissioner Cindy Heiberger hasn't seen Hickey's proposal, but says any discussion about helping the counties that shoulder the burden of legal defense is welcome. "It sounds really good on the surface. Anything we can use to pay for court-appointed attorneys or court costs is something we should talk about," Heiberger said. But, she cautioned, "when we're taking money from one pot and moving it to another, we need to make sure the logistics make sense for everyone."

The notion of using seized drug money to pay for criminal defense doesn't sit well with Attorney General Marty Jackley. The drug control fund consists of money seized from suspected drug sales and other cash collected from auctioning off seized vehicles and other property. "I do not support using the profits of criminals to defend their activities," Jackley said.

The money pays the drug testing bills for cities and counties, Jackley said, and the remaining money is used to buy vehicles, camera systems and other items for local police and sheriff's departments. Giving some of the money to counties for indigent defense could force local agencies to bear the cost of drug testing and reduce the availability of funds for equipment upgrades and replacements.

In 2013, $70,514 was awarded from the drug control fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the drug control fund to local agencies. Drug control money pays an average of $60,000 per month to local law enforcement for drug testing, according to DCI records.

December 26, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, December 18, 2014

Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution."  Here is more on the latest fascinating development in the world of marijuana reform law and policy:

At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."

Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.

Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...

He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.

Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."

Via the Denver Post, the 83-page SCOTUS filing can be found at this link.

Wowsa (and cross-posted at Marijuana Law, Policy and Reform)!

December 18, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, December 17, 2014

President Obama (aka clemency grinch) grants a few holiday pardons and commutations

GrinchFollowing the holiday script he first wrote with a few clemency grants last year the week before Christmas (as reported in this prior post), President Obama this afternoon granted 20 clemencies in the form of 8 commutations and 12 pardons.  This AP story provides the basics and some background:

President Barack Obama on Wednesday cut short prison time for eight drug convicts as part of his new initiative to reduce harsh sentences under outdated guidelines, a step that could lead to a vast expansion of presidential clemency in his final two years in office.

The president also is pardoning 12 convicts for a variety of offenses.  But the commutations are particularly significant because they are the first issued under new guidelines announced earlier this year designed to cut costs by reducing the nation's bulging prison population and grant leniency to nonviolent drug offenders sentenced to double-digit terms....

The White House said the eight new commutations Obama granted were for prisoners who likely would receive a substantially lower sentence today and would have already served their time.  For example, they include Barbara Scrivner, who was sentenced to 30 years in 1995 when she was 27 years old for a minor role in her husband's meth ring. Obama ordered her sentence to expire June 12, while others will expire April 15.

Administration officials say they expect Obama to grant more clemency petitions in his final two years in office under the changed policy he ordered from the Justice Department. The White House said 6,561 people already have applied in the past year, compared to 2,370 the year before. "I think there is an awareness out there that this president is interested in granting clemency on these kinds of matters," White House counsel Neil Eggleston said in an interview.

The clemency policy changes aren't limited to drug offenders, who comprise about half of the roughly 216,000 federal prisoners, but the criteria makes it clear they are the main target. To be eligible, inmates must have already been behind bars for at least 10 years, have a nonviolent history, have no major criminal convictions, have a good behavior record in prison, and be serving a sentence that, if imposed today, would be substantially shorter than what they were given at the time....

In his first term, Obama commuted just one drug sentence and pardoned 39 people, causing prisoner advocates to accuse him of being too stingy with his power. Obama aides said it was because he wasn't receiving more positive recommendations from the Office of the Pardon Attorney so he directed the Justice Department to improve its clemency recommendation process and recruit more applications from convicts.

Deputy Attorney General James Cole, who in April announced the clemency policy changes, said the sentence commutations reflect a "commitment to bring fairness to our criminal justice system."

"While all eight were properly held accountable for their criminal actions, their punishments did not fit their crimes, and sentencing laws and policies have since been updated to ensure more fairness for low-level offenders," he said in a statement....

The White House noted Obama now has commuted 18 sentences, compared to 11 under President George W. Bush and three in the first six years of the Clinton presidency. Clinton eventually commuted 61, most in a controversial action on his last day in office.

The full list of the lucky receipients of this act of presidential grace can be found here via the White House.  And this link provide the full text of Deputy AG Cole's statement about these clemency grants.  I expect the folks who follow the ins-and-outs of clemency even more closely than I do will have a lot to say in the days ahead about what might be special about the folks on this clemency list.

Though I do not want to criticize the President too much on a day in which he finally saw fit to make some minor use of his constitutional clemency authority, I will still think of him as a clemency grinch until he begins more regularly granting commutations to a whole lot more offenders still stuck serving severe (and now repealed) crack sentences.  There are, I believe, thousands of federal prisoners still serving time for crack offenses based on the old 100-1 crack/powder ratio, and there are surely many thousands more low-level drug offenders arguably just as deserving of clemency consideration.  President Obama would have to grant eight commutations every single day over the two years remaining in his presidency to even start to make a serious dent in federal prison population.

December 17, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?

Images (6)As reported in this post yesterday, an astute lawyer in California sought (and, I now know, obtained) a significant postponement of his client's scheduled federal marijuana sentencing based on a provision in H.R. 83, the 1700-page Cromnibus spending bill, which directs the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes.  Specifically, Section 538 of the Cromnibus states, in relevant part:

None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Though this provision (which was officially signed into law by President Obama on Tuesday) is rightly being hailed as historic, what exactly Section 538 of the Cromnibus means formally and functionally for the Department of Justice and federal marijuana prohibition is anything but obvious or clear.  For starters, this provision is a funding directive to DOJ, not a formal restriction on DOJ activities, and it is unclear how such a provision is to be administered or enforced.  Moreover, this provision plainly does not provide a formal right or even permission for individuals under federal law to be involved in the "use, distribution, possession, or cultivation of medical marijuana."  Indeed, given that federal law currently has marijuana listed as a Schedule I drug, the very use of the term "medical marijuana" in this Section 538 of the Cromnibus is somewhat oxymoronic as a new phrase in the federal legal nomenclature.

That all said, the enactment of formal federal law ordering that DOJ not use funds to prevent the implementation of state medical marijuana laws clearly means something significant not only in states that have medical marijuana laws but throughout the nation.  In particular, as the question in the title of this post is meant to connote, I think this congressional approval (of sorts) of state medical marijuana laws should have a tangible (and perhaps significant) impact on any and all federal marijuana sentencings scheduled for the weeks and months ahead.

The specific instructions of 18 U.S.C. § 3553(a) tells federal judges that they must consider at sentencing, inter alia, "the nature and circumstances of the offense" as well as the "need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."  Even before the passage of Section 538 of the Cromnibus, I thought it was appropriate for a judge at a federal marijuana sentencing to consider based on these provisions a defendant's claim that he was in compliance with state medical marijuana laws.  But DOJ in the past could respond by reasonably asserting that Congress would not want a federal judge for federal sentencing purposes to inquire into any claims of state-law compliance.  

Now that Section 538 of the Cromnibus is official federal law, I believe every federal judge at any future federal marijuana sentencings should feel duty-bound to examine the particulars of a defense claim of compliance with state medical marijuana laws.  In light of what Congress enacted, consideration of claimed compliance with state medical marijuana laws seems essential to "promote respect for the law" as well as to stake proper stock of "the nature and circumstances of the offense" and "just punishment for the offense."

Moreover, I think some viable sentencing arguments might now be made based on Section 538 on behalf of some federal marijuana defendants even in the 18 states that have not yet enacted medical marijuana reforms.  If a federal defendant can reasonably assert, even in a non-reform state, that he was (mostly? somewhat? a little?) involved in distribution of marijuana for medical purposes, he might point to 3553(a)(6) and claim that sentencing him hard for medical marijuana distribution in a non-reform state would create (unwarranted?) sentencing disparity when compared to sentences likely to be imposed for the same offense in reform-state jurisdictions.

Critically, I am not contending (yet) that Section 538 of the Cromnibus must or even should have a direct and substantial impact on federal marijuana sentencings in reform or non-reform states.  But I am contending that, thanks to Section 538 of the Cromnibus, there are now a lot more federal sentencing issues that need to be subject to a lot more thought before federal judges move ahead with the roughly 100 federal marijuana sentencings that take place throughout the US every week.

In sum, to answer my own question in the title of this post, I would say simple YES.

Some previous related posts:

December 17, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, December 16, 2014

Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws

California Attorney Ronald Richards today sent me a copy of a fascinating emergency motion he filed this week that seeks a postponement of his client's scheduled federal marijuana sentencing today. Here are excerpts from the four-page memorandum in support of the motion (which can be downloaded below) which highlights why I find it fascinating:

Rarely in any counsel’s career has he or she had to file an emergency motion.  However, in the world of marijuana laws, the landscape keeps changing; this time, on a historic level. On Saturday night, the United States Senate voted to approve H.R. 83.  This is a 1696 page spending bill.  In the bill, section 538 forbids the use of money by the Department of Justice for interfering with State laws that allow cultivation of marijuana....

In this case, if the Department of Justice is mandated to not spend any money on interfering with lawful marijuana cultivations implementing state law, the raids, the seizures, and the federal prosecution will come to a halt in California.  In addition, if the scheduling is attacked by the litigation in the Eastern District and changed, there are just too many signals that the 77 years of marijuana prohibition may be coming to an end.  At least, there is not a direct policy mandate from Congress.  It is no different than a highway withholding funding to keep speeds under 80 MPH or at 55 MPH during the energy crisis....

If this bill is signed by the President, which all indications are that he will sign it or the government will shut down, it will become law and policy.  The Department of Justice could not in either the spirit or the letter of the law allocate any further staff, investigation, or budget to continue to prosecute this case.  Furthermore, all future prosecutions of legal California cultivators would cease to exist....

Based upon the historic passage by the House and the Senate of H.R. 83, the defendant requests a 90 day adjournment of his sentence.  If the bill becomes law, he will move to withdraw his plea or file a stipulation to that effect with the government.  It would be unfair for him to be burdened with a felony conviction and incarceration when in just two weeks, all the current cultivators in this State would enjoy the new found relief provided by the Congressional mandate.

Download Motion to postpone federal MJ sentencing in California

December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Survey: Teen marijuana use declines even as states legalize"

The title of this post is the headline of this notable new USA Today article reporting on new data that seems likely to be trumpted by those advocating for continued reform of marijuana laws.  Here are the basics:

Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.

"There is a lot of good news in this year's results, bu the problems of teen substance use and abuse are still far from going away," Lloyd Johnston, the study's principal investigator, said.

After five years of increases, marijuana use in the past year by students in all three grades declined slightly, from 26% in 2013 to 24% in 2014. Students in the two lower grades reported that marijuana is less available than it once was, the survey found. Among high school seniors, one in 17, or 5.8%, say they use marijuana almost daily this year, down from 6.5% in 2013.

Synthetic marijuana, chemical concoctions meant to simulate a marijuana high and sold at convenience stores and gas stations, have also fallen out of favor. In 2011, when the survey first asked about the drugs, known as K2 and Spice, 11% of 12th graders said they had used the drugs in the past year. In 2014, that number had dropped to 6%. "Efforts at the federal and state levels to close down the sale of these substances may be having an effect," Johnston said.

Abuse of all prescription drugs, including narcotic painkillers, sedatives and amphetamines, declined from 16% in 2013 to 14% in 2014 among 12th graders, the survey found. Narcotic painkiller use, in decline since 2009, dropped again from 7% in 2013 to 6% in 2014. Heroin use, which has grown among adult populations, remained stable for teens.

Teens considered narcotic pain relievers, such as OxyContin and Vicodin, safer than illicit drugs such as heroin and cocaine, because they are prescribed by doctors, Nora Volkow, director of the National Institute on Drug Abuse, said. "There's a very strong and aggressive campaign about educating the public on the risk of opioid medications as it relates to overdoses and deaths," Volkow said. "That has made teenagers aware that they are not so safe as they thought they were."

Teen use of both alcohol and cigarettes dropped this year to their lowest points since the study began in 1975, the survey found. Teens may be trading conventional cigarettes for e-cigarettes. In 2014, more teens used e-cigarettes than traditional tobacco cigarettes or any other tobacco product, the study found. "E-cigarettes have made rapid inroads into the lives of American adolescents," Richard Miech, a senior investigator of the study, said....

Alcohol use and binge drinking peaked in 1997, when 61% of the students surveyed said they had drunk alcohol in the previous 12 months. In 2014, 41% reported alcohol use in the previous year, a drop from 43% in 2013, the survey found. Since the 1997 peak, "there has been a fairly steady downward march in alcohol use among adolescents," Johnston said....

"Even though the indicators are very good news, at the same time we cannot become complacent," Volkow said. "This is a stage where their brains are most vulnerable. We need to continue our prevention efforts."

Cross-posted at Marijuana Law, Policy & Reform

December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Notable NPR coverage of the "Human Casualties Of Mandatory Sentencing"

Download (3)I am pleased and intrigued to see that National Public Radio seems to be starting a deep dive into some of the personal stories surrounding the debate over federal mandatory minimum.  This introduction, headlined "From Judges To Inmates, Finding The Human Casualties Of Mandatory Sentencing," sets up the discussion this way:

This year, everyone from Attorney General Eric Holder to Tea Party Republicans in Congress has argued those stiff mandatory minimum prison sentences do more harm than good for thousands of drug offenders. Legislation to cut the tough-on-crime penalties has stalled on Capitol Hill, but it's likely to be reintroduced in 2015. Meanwhile, the White House and the Justice Department have taken the unprecedented step of asking for candidates who might win early release from prison through presidential pardons or commutations in the final years of the Obama presidency. That effort, known as Clemency Project 2014, is moving slowly.

Amid the backdrop of debate inside Washington and across the country, NPR decided to focus on the human toll of these mandatory prison sentences. We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly-released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.

The series' first lengthy piece here is titled "Judge Regrets Harsh Human Toll Of Mandatory Minimum Sentences," has lots of good content and quotes from Judge John Gleeson and Professors Rachel Barkow and Bill Otis.

December 16, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, December 04, 2014

Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable

Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here).  Here are excerpts from the start, middle and end of the lengthy opinion:

In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense.  The district court sentenced Howard to a term of life imprisonment plus 60 months....  For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....

The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure.  Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....

By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....

The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence.  It stated the need for individual and general deterrence, incapacitation, and just punishment.   There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina.  The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment.  Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).

December 4, 2014 in Booker in the Circuits, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Saturday, November 29, 2014

Is Big Pharma already a bigger threat to kids than Big Marijuana would be?

The question in the title of this post is prompted by this interesting new piece up at The Crime Report headlined "The RX Alliance That Drugs Our Kids."  Here is how the piece starts:

Olivia Hernandez always trusted the doctors who scribbled out prescription after prescription for the heavy-duty psychiatric drugs that clouded her teenage years in foster care. Now, she feels “betrayed.”

Three of her former doctors are among a chosen group of California foster care prescribers who received gifts and payments for meals, travel, speaking and industry-sponsored research from the world’s biggest pharmaceutical companies.

A three-part investigation by the San Jose Mercury News has found that drugmakers, anxious to expand the market for some of their most profitable products, spent more than $14 million from 2010 to 2013 to woo the California doctors who treat this captive and fragile audience of patients at taxpayers’ expense.

Drugmakers distribute their cash to all manner of doctors, but the investigation found that they paid the state’s foster care prescribers on average more than double what they gave to the typical California physician. The connection raises concerns that Hernandez and many other unsuspecting youth have been caught in the middle of a big-money alliance that could be helping to drive the rampant use of psychiatric medications in the state’s foster care system.

I am sympathetic to those advocates concerned that a legalized marijuana industry will end up being eager to market pot products to young users. But, as this article highlights, Big Pharma not only markets drug products to kids, but it has a huge group of licensed drug dealers (doctors) helping them peddle drug products.

November 29, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, November 26, 2014

Senator Rand Paul links Ferguson tragedy to harms of the modern drug war

Regular readers know I am always interested in Senator Rand Paul's distinctive perspective on criminal justice issues.  This new Time op-ed, headlined "The Politicians Are To Blame in Ferguson," has Senator Paul touching on broader themes as he connects recent events in Ferguson with his belief in the need for systemic reforms to the US criminal justice system. Here are excerpts:

We are witnessing a tragedy in Ferguson. This city in Missouri has become a focal point for so much. The President and the late Michael Brown’s family have called for peace. I join their calls for peaceful protest, but also reiterate their call to action — “channel your frustration in ways that will make a positive change.”

In the search for culpability for the tragedy in Ferguson, I mostly blame politicians. Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America.  The War on Drugs has created a culture of violence and put police in a nearly impossible situation.

In Ferguson, the precipitating crime was not drugs, but theft.  But the War on Drugs has created a tension in some communities that too often results in tragedy.  One need only witness the baby in Georgia, who had a concussive grenade explode in her face during a late-night, no-knock drug raid (in which no drugs were found) to understand the feelings of many minorities — the feeling that they are being unfairly targeted.

Three out of four people in jail for drugs are people of color.  In the African American community, folks rightly ask why are our sons disproportionately incarcerated, killed, and maimed?

African Americans perceive as true that their kids are more likely to be killed.  ProPublica examined 33 years of FBI data on police shootings, accounted for the racial make-up of the country, and determined that: “Young black males in recent years were at a far greater risk of being shot dead by police than their white counterparts — 21 times greater.”

Can some of the disparity be blamed on a higher rate of crime in the black community? Yes, but there is a gnawing feeling that simply being black in a high-crime area increases your risk for a deadly altercation with police.

Does bad behavior account for some of the interactions with law enforcement?  Yes, but surely there must be ways that we can work to prevent the violence from escalating....

Reforming criminal justice to make it racially blind is imperative, but that won’t lift up these young men from poverty.  In fact, I don’t believe any law will.  For too long, we’ve attached some mythic notion to government solutions and yet, 40 years after we began the War on Poverty, poverty still abounds.,,,

This message is not a racial one.  The link between poverty, lack of education, and children outside of marriage is staggering and cuts across all racial groups.  Statistics uniformly show that waiting to have children in marriage and obtaining an education are an invaluable part of escaping poverty....

I will continue to fight to end the racial disparities in drug sentencing.  I will continue to fight lengthy, mandatory sentences that prevent judges from using discretion.  I will continue to fight to restore voting rights for non-violent felons who’ve served their sentences.  But my hope is that out of tragedy, a preacher or teacher will arise — one who motivates and inspires all of us to discover traits, ambitions, and moral codes that have slowly eroded and left us empty with despair.

I will continue the fight to reform our nation’s criminal justice system, but in the meantime, the call should go out for a charismatic leader, not a politician, to preach a gospel of hope and prosperity.  I have said often America is in need of a revival.  Part of that is spiritual.  Part of that is in civics, in our leaders, in our institutions. We must look at policies, ideas, and attitudes that have failed us and we must demand better.

November 26, 2014 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (10) | TrackBack

Monday, November 24, 2014

USSC Chair's discussion of "A Generational Shift for Drug Sentences" now in print

I noticed via the US Sentencing Commission's official website that Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, has now in print this law review article titled “A Generational Shift For Drug Sentences.” The article is based on a like-titled speech given by Judge Saris noted here earlier this year, and here is a snippet from the article's introduction:

It has been a generation since the laws governing federal drug sentences were put into place. Since the 1980s, our society, our attitudes, and our criminal justice system have evolved.  The Supreme Court case law, the statutes and United States Sentencing Guidelines (“Guidelines”), and the realities on the ground have changed significantly. With the benefit of experience and new thought, many are considering whether a change — a generational shift — in our approach to federal drug sentences is appropriate....

This article focuses on policies regarding drug offenders and drug penalties as one means to effect change in the federal prison populations and costs.  Drug offenders make up about a third of the offenders sentenced federally every year and a majority of the prisoners serving in the federal Bureau of Prisons, so they are in many ways the key to the size and nature of the federal prison population.  This article has four parts: Part I explores the history of the current mandatory minimum drug penalties, the Sentencing Commission, and the federal drug sentencing guidelines; Part II examines criminal justice system shifts over the past thirty years; Part III identifies what changes can be made by Congress and elsewhere to address the burgeoning federal prison population; and Part IV explains the Commission’s significant amendments in 2014 to reduce drug guideline sentences.

November 24, 2014 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, November 19, 2014

Some recent highlights from Marijuana Law, Policy and Reform

It has been a few weeks since I have done a round up of notable new posts from Marijuana Law, Policy and Reform, so here goes: 

November 19, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (2) | TrackBack

Monday, November 17, 2014

The Marshall Project gets AG Holder to talk about his criminal justice reform work

I am pleased to see that The Marshall Project is now running full steam and has now lots of notable new content on its slick website. Though I am concerned that this notable criminal justice media project, like some others, may end up focusing too much attention on the death penalty, it seems clear that The Marshall Project is going to have lots of material that sentencing fans will want to follow regularly.

Most notably today, The Marhsall Project has posted this exclusive interview with outgoing Attorney General Eric Holder. The piece is headlined "Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty," though I consider the discussion about drug sentencing reform to be most interesting. The piece is a must-read, and here is how it gets started:

The Marshall Project: You’ve been pretty outspoken on criminal justice issues across the board – more outspoken than your boss, actually. What would you single out as your proudest accomplishment in the area of the criminal justice system, and what would you single out as your biggest disappointment?

Holder: In January 2013 I told the people in the Justice Department after the re-election that I wanted to focus on reforming the federal criminal justice system. I made an announcement in August of that year in San Francisco, when we rolled out the Smart on Crime initiative. It was a way of breaking some really entrenched thinking and asking prosecutors, investigators, the bureaucracy – to think about how we do our jobs in a different way – to ask the question of whether excessively long prison sentences for nonviolent offenders really served any good purpose, how we used enhancement papers, moving discretion to prosecutors and asking them to make individualized determinations about what they should do in cases, as opposed to have some big policy sent to them from Washington.

And I think that by and large – not without opposition, to be totally honest – the federal system has embraced that vision. And I think that we have started to see the kind of changes that I hoped we would see.

[MP]: And the biggest disappointment?

Holder: I’m proud of the fact that – in 2010, I guess – we reduced that ratio, the crack-powder, from 100-to-1 to about 17- or 18-to-1. I’m still disappointed that, given the lack of a pharmacological distinction between crack and cocaine, the ratio is not 1-to-1. You know, it was the product of a lot of hard work that the president was intimately involved in. But I think he would agree with me that that number should be at 1-to-1.

[MP]: Before the second term is over, could there be a push for a 1-to-1 ratio?

Holder: That is something that I know the president believes in, that I believe in. One of the things that I’d like to see happen before the end of this administration is that there would be a drug court in every district in this country. As I speak to my successor, the 83rd Attorney General, and as I speak to the president, I’m going to push them to make that a goal for this administration, to have a drug court in every district by the end of Barack Obama’s second term.

November 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, November 14, 2014

Over lengthy dissents, en banc Eleventh Circuit shuts 2255 door to claims based on advisory guideline misapplication

The Eleventh Circuit has today provided some special weekend reading for hard-core federal sentencing fans with a special interest in finality issues (which, I realize, might be a small group).  Specifically, the en banc ruling together with dissents in Spencer v. US, No. 10-10676 (11th Cir. Nov. 14, 2014) (available here), runs more than 100 pages. More than three-quarters of those pages come from the dissents to a majority opinion (per Judge William Pryor) that begins this way:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence.  After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.”  United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006).  Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review.  We disagree.

Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines.  Spencer’s sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer’s sentence was and remains lawful.  We affirm the denial of Spencer’s motion to vacate his sentence.

At the very end of a very long week, I cannot do justice to the majority opinios or the dissents in this space, so I will close by quoting from the start of one of the dissents (per Judge Jordan) to highlight the human story at the center of the legal debate in Spencer:

At the end of the day, what constitutes a fundamental defect resulting in a complete miscarriage of justice comes down to a matter of considered judgment.  In my judgment, having an individual serve an additional 81 months in prison due to an erroneous career offender designation under the advisory Sentencing Guidelines constitutes such a miscarriage of justice, and for that reason I respectfully dissent.

Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine.  The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months.  For those of us familiar with — and sometimes numbed by — the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error.  To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.

Mr. Spencer timely and consistently objected to the career offender designation, only to be told he was wrong.  As it turns out, he was right.  Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. § 2255 to correct the error.

November 14, 2014 in Advisory Sentencing Guidelines, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Wednesday, November 12, 2014

Federal judge wonders if marijuana sentencing should be impacted by state reforms

As reported in this Oregonian article, a "federal judge in Portland last week delayed the sentencing of a convicted bulk marijuana runner from Texas, saying he needed to get a better read on the U.S. Department of Justice's position on the drug before imposing a sentence." Here are more details:

U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."

"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.

Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.

"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?

"Should I delay this, in your view, or go ahead today (with sentencing)?" After hearing arguments from the lawyers, Mosman decided to delay Bouasykeo's punishment.

November 12, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, November 06, 2014

"After the Cheering Stopped: Decriminalization and Legalism's Limits"

The title of this post is the title of this notable and timely paper by Wayne Logan which I just saw on SSRN. Here is the abstract:

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon.

Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.

November 6, 2014 in Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 05, 2014

California sentencing reform initiative Prop 47 wins big getting almost 60% support

As repoted in this Huffinton Post piece, "California approved a major shift against mass incarceration on Tuesday in a vote that could lead to the release of thousands of state prisoners."  Here are the basics from a piece headlined "California Voters Deal Blow To Prisons, Drug War":

Nonviolent felonies like shoplifting and drug possession will be downgraded to misdemeanors under the ballot measure, Proposition 47.  As many as 10,000 people could be eligible for early release from state prisons, and it's expected that courts will annually dispense around 40,000 fewer felony convictions.

The state Legislative Analyst's Office estimates that the new measure will save hundreds of millions of dollars on prisons.  That money is to be redirected to education, mental health and addiction services -- a novel approach that reformers hope will serve as a model in the larger push against mass incarceration.

This official webpage with California ballot measure voting results reports that Prop 47 received 58.5% of votes in support. This big margin of victory strikes me as big news that can and should further propel the political narrative that, at least in some places, significant numbers of voters are significantly interested in significant sentencing reform.

November 5, 2014 in Drug Offense Sentencing, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 04, 2014

US District Judge Kopf reports on retroactive implementation of new reduced federal drug guidelines in Nebraska

As noted in this post from last week, the start of November2014  marked the official start for the new reduced federal guidelines for drug offenses put in place by guideline Amendment 782.  At his great blog, US District Judge Richard Kopf has this lengthy new post on the practicalities of implementing the Amendment's retroactivity in his district.   I recommend the whole post, from which these excerpts are drawn:

I will take a moment to describe the implementation of Amendment 782 in the District of Nebraska.  We are a small district with a large criminal case load, especially including drug cases.  As of June 30, 2014, on a per-judge basis, we ranked seventh in the nation and first in the Eighth Circuit for criminal cases. Indeed, Amendment 782 may impact over 700 offenders previously sentenced in our court.  Behind the scenes, the implementation of Amendment 782 has had a huge impact on us as we try to fully and fairly implement this important retroactive change to the Guidelines.

With 700 offenders potentially eligible for a sentencing reduction, our district decided that every potentially eligible offender would have his or her case individually scrutinized whether or not a motion had been filed and that every such offender would have a lawyer.  After conferring with the United States Attorney, the Federal Public Defender and our probation office, we issued general (standing) orders....

Four people are responsible for superintending the implementation of Amendment 782: two very senior United States Probation officers who are experts in the Guidelines; the head of the drug prosecution unit of the US Attorney’s office; and the Federal Public Defender.  They have cooperated nicely, and have established internal operating protocols between them.  After the Clerk’s office tracked down the whereabouts of each of the 700 or so offenders through the Bureau of Prisons (a huge task), the group of four sensibly decided upon a “triage” plan.  Offenders who are eligible for release on the earliest possible date (November 1, 2015), get attention first.  Offenders who are eligible later receive attention later.

Ultimately, the Federal Public Defender, or one of his assistants or a Criminal Justice Act panel lawyer, will file a motion for relief when the group of four decide that the time is right.  A probation officer will submit and file as a restricted document a worksheet that includes a calculation under Amendment 782 and the Guidelines.  That worksheet will also include a report on the offender’s institutional adjustment and the probation officer’s recommendation about whether relief should be granted....

After the motion is filed, and the worksheet is submitted, the prosecutor and defense lawyer will confer and in most cases a stipulation will be reached.  Assuming a stipulation is reached, it will be filed.  After that, and without a hearing, relief will normally be granted.  If no stipulation can be reached, then in my cases a hearing will be held.

It is possible that a judge might tentatively conclude not to follow a stipulation. While I cannot speak for the other judges, in my cases, I will hold a hearing to give the parties an opportunity to be heard.  Whether or not the defendant will be present at such a hearing has yet to be determined by me.  In the past, if a dispute of fact arose and the offender could be expected to have unique knowledge of the facts, I have not hesitated to give the offender an opportunity to appear and testify.  It is probable that I will follow the same approach for Amendment 782 factual disputes where the testimony of the offender is critical to the fair resolution of the matter.  However, in the huge majority of cases, this will not be necessary.

In summary, the equitable and effective implementation of Amendment 782 requires a lot of “behind the scenes” work.  We are fortunate to have the cooperative, but always zealous, assistance of prosecutors and defense lawyers, aided by a probation office that is second to none.

November 4, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Will Election 2014 speed up or slow down the marijuana reform movement?

This new Quartz piece, headlined "However the US votes on marijuana today, it’s 2016 that really matters," highlights that the marijuana reform movement will march on even if voters this election cycle reject various reform initiatives now on the ballot: 

There are three marijuana ballot initiatives in today’s midterm elections — in Alaska, Oregon and Washington DC — where voters will decide on outright legalization of recreational marijuana.  In a fourth ballot, in Florida, voters will vote on a proposed amendment to the state’s constitution, which would legalize medical marijuana.  Initiative 71 in the nation’s capital is the only ballot that looks certain to pass. The remaining three are expected to go down to the wire.

While passage of these ballots could potentially signal growing momentum for the pro-marijuana legalization movement nationally, marijuana advocates are looking to the 2016 general elections as a more accurate barometer of where they stand within the American cultural and political mainstream.  The reason being is that more younger and minority voters — groups who polls show support marijuana legalization in higher numbers — vote during quadrennial general elections, while the electorate tends to be older and more conservative in the midterms.

At least five US states — Arizona, California, Maine, Massachusetts and Nevada — will hold ballot initiatives in 2016.  And the diverse political makeup of those states, from the conservative battleground of Arizona to the liberal hotbed of Massachusetts, means that success at the ballot box would show that legalization spans the political and ideological spectrum, says Mason Tvert, spokesperson for the Marijuana Policy Project.  “Whatever happens Tuesday, we don’t see a step backwards for the movement going into 2016,” Tvert tells Quartz.  “Public opinion is on our side, it is only going in one direction, and that is toward an end to marijuana prohibition in this country.”

Though it is a near certainty that marijuana reform issues will be an even bigger part of the political conversation in 2016 than in 2014, I expect the final voting results in Alaska, Florida, Oregon and Washington DC will have a huge impact on the tenor and tenacity of those advocate pushing for and resisting reform. If most of the reform initiatives pass in this year, advocates for reform will be able to continue a narrative of legalization's inevitability it will become every harder for serious candidates for state and federal offices to avoid discussing this issue. But if all of these initiatives fail, opponents of reform can and will assert that the voters are already starting to turn away from supporting legalization now that they are seeing what it really means in a few states.

Over at Marijuana Law, Policy & Reform, I have completed this series of posts on the dynamics in play in the three states with big reform initiative on the ballot:

November 4, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 03, 2014

Arguing for releasing all drug prisoners and reparations to "right the drug war’s wrongs"

Lucy Steigerwald has this provocative new Washington Post blog/commentary piece headlined "Sentencing reform and how to right the drug war’s wrongs." Here are excerpts:

On November 1, the U.S. Sentencing Commission’s plan to reform sentencing for certain drug crimes went into effect. The details were hammered out back in April and July, and they could have been challenged by Congress. Thankfully, Congress declined to do so, and now the commission has a chance at helping nearly half of the 100,000 inmates in federal prison come home earlier than they otherwise would have.

For decades, the war on drugs rolled onward, leaving a pulpy mass of casualties in its wake. But since at least 2012, when Colorado and Washington state legalized recreational use of marijuana, there has been some serious strides against this dangerous domestic policy. Generally, however, any progress made on drugs has been confined to changing the legality of substances....

Even the tentative, good-but-not-good-enough Fair Sentencing Act, which reduced the sentencing disparity between crack and cocaine in 2010, was initially not retroactive until the USSC voted to make it so.... The USSC is doing something more substantial still with their new guidelines, which allow for retroactive petitioning for reduced time in prison starting in November 2015. Prisoners may begin petitioning for these reductions now, however. Unfortunately, those sentences cannot fall below the mandatory minimums, which can only be changed by Congress. Ideally, the Justice Safety Valve Act, introduced by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.), which would give judges more flexibility to depart from mandatory minimums, will be eventually signed into law, allowing for some of the damages wrought by these mandatory sentences to be mitigated.

In addition, even though the sentencing reforms help the federal prison population, we are very far from instituting anything as optimistic on a statewide level. Most of the some-400,000 state prisoners in jail on drug-related crimes are out of luck unless they get individual commuting of their sentences.

As the war on drugs loses popularity, the question of what to do about the lives ruined and interrupted is going to come up again and again. One of the more fascinating, though politically unrealistic suggestions for what to do about this mess is one offered by a Green Party candidate for governor of New York: Howie Hawkins suggests releasing all drug prisoners, and putting together a “panel on reconciliation” between them and their communities and governments. They want voting rights restored, school grants restored, help for children of the former cons, and prevention of would-be employers asking about criminal histories. They even suggest full-on reparations for “the communities affected.”

This won’t pass muster, probably not even in the most liberal states. The slow reforms being offered by the USSC, and criminal justice advocates like Sen. Paul might be all we get. But the reparations idea does present a question of what society should do after the madness of a moral panic dims, and the end result turns out to be 2.3 million people in prison or jail. Most people wouldn’t object to a payment to any of the 147 people freed from death row, especially those who turned out to be unequivocally innocent. What happens when we realize that neither possessing nor selling drugs is a real criminal act? Doesn’t that suggest that we have a lot of innocent people in prison who will need a lot of help in restarting their lives?

November 3, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

"Narcotics Prosecutors as Problem Solvers"

The title of this post is the title of this intriguing little new piece by Mark Osler now available via SSRN.  Here is the abstract:

When deciding whether and how to pursue narcotics cases, federal prosecutors should focus not on number of convictions or quantity of drugs intercepted, but rather on whether they are solving problems through the cases they choose.  He first examines federal prosecutors' extremely broad discretion in selecting narcotics defendants and charges, as well as some of the negative effects of the failure to employ a "problem solving" rubric in the war on drugs to date.  He then suggests a number of changes that such a rubric would bring to the way narcotics cases are pursued, including a change in the proxy that prosecutors use for defendant culpability from drug quantity to drug profits.

November 3, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, October 31, 2014

New reduced federal drug sentencing guidelines about to become official

Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof.  Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history.  This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal: 

[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive.  Because Congress has not acted to disapprove the Commission’s actions, the amendment becomes effective tomorrow.  Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.

[Comment by USSC Chair Patti Saris:] “The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety.  Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution.  I am also gratified that Congress permitted this important reform to go forward.

This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment.  Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties.  I hope that Congress will act promptly to pass comprehensive sentencing reform legislation.”

October 31, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, October 27, 2014

Notable new Cato working paper examines "Marijuana Policy in Colorado"

Dr. Jeffrey Miron, who is director of economic studies at the Cato Institute and director of undergraduate studies in the Department of Economics at Harvard University, has just produced this significant new Cato working paper titled "Marijuana Policy in Colorado."  The paper is relatively short, though it includes lots of data, and here is its Executive Summary and its closing paragraphs:

In November 2012, voters in the states of Colorado and Washington approved ballot initiatives that legalized marijuana for recreational purposes.  Alaska, Oregon, and the District of Columbia are scheduled to consider similar measures in the fall of 2014, and other states may follow suit in the fall of 2016.

Supporters and opponents of such initiatives make numerous claims about state-level marijuana legalization.  Advocates believe legalization reduces crime, raises revenue, lowers criminal justice expenditure, improves public health, improves traffic safety, and stimulates the economy.  Critics believe legalization spurs marijuana use, increases crime, diminishes traffic safety, harms public health, and lowers teen educational achievement.  Systematic evaluation of these claims, however, has been absent.

This paper provides a preliminary assessment of marijuana legalization and related policies in Colorado.  It is the first part of a longer-term project that will monitor state marijuana legalizations in Colorado, Washington, and other states.

The conclusion from this initial evaluation is that changes in Colorado’s marijuana policy have had minimal impact on marijuana use and the outcomes sometimes associated with use.  Colorado has collected non-trivial tax revenue from legal marijuana, but so far less than anticipated by legalization advocates....

The evidence provided here suggests that marijuana policy changes in Colorado have had minimal impact on marijuana use and the outcomes sometimes associated with use.  This does not prove that other legalizing states will experience similar results, nor that the absence of major effects will continue.  Such conclusions must await additional evidence from Colorado, Washington, and future legalizing states, as well as more statistically robust analyses that use non-legalizing states as controls.

But the evidence here indicates that strong claims about Colorado’s legalization, whether by advocates or opponents, are so far devoid of empirical support.

Cross-posted at Marijuana Law, Policy & Reform

October 27, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Friday, October 24, 2014

Election season round-up of posts on pot politics from Marijuana Law, Policy and Reform

For various reasons and in various ways, I find the politics of modern marijuana reform even more interesting than its policies and practicalities. Consequently, a number of my recent posts at Marijuana Law, Policy and Reform have focused on political developments and discourse in those states with significant reform proposals on the ballot in 2014.  As this election season now kicks into its final stretch, I thought it useful to collect some of these posts in this space:

As time and energy permits, I am hoping soon to start a series of posts on pot politics circa 2014 over at Marijuana Law, Policy and Reform  in order to explain why I think the results of this election season in a Alaska, Florida and Oregon are likely to have a huge impact on marijuana policy and national politics in the coming years.

October 24, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Wednesday, October 22, 2014

Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?

The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:

So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).

Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....

To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.

Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.

She is particularly open about her support for marijuana legalization, arguing in a recent op-ed that the “solution is clear: …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 Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.

Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”

Sound public policy must be based on facts, not radical unsafe, and dangerous theories.

I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."

The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.

That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate.  (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.)   I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues.  But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.

October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, October 20, 2014

New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders

Download (2)I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court.  Here is how the Globe article starts:

The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.  

Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000.  “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.

Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing.  His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system.  “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.

Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.”  That means considering mental health or substance abuse treatment as well as time in prison.  Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.

Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse.  Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.”  She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”

Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said.  “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”

The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users.  “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said.  “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”

Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.  In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence.  For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.

I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years.  But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.  And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.

October 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, October 07, 2014

Rolling Stone laments enduring casualties of drug war's mandatory minimums

ImagesRolling Stone magazine has just published this extensive "special report" titled "The Nation's Shame: The Injustice of Mandatory Minimums." The piece details the stories of seven notable low-level drug defendants serving high-level prison sentences. The piece has this subheading: "For decades, lawyers, scholars, and judges have criticized mandatory drug sentencing as oppressive and ineffective. Yet tens of thousands of nonviolent offenders continue to languish behind bars."  And here is a portion of the lead into the seven cases profiled:

Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders.  Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors.  Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while [Professor Mark] Osler says, prosecutors gained "a big hammer.  The easy way of doing things is to threaten people with a lot of time, and then plead them out," he says.  "But easy and justice don't go together very well."...

[T]he drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20.  Every year, taxpayers shell out $51 billion for drug war spending.  Meanwhile, 2.2 million people — or a quarter of the world's prisoners — crowd a system that exacts its harshest toll on the most vulnerable. Racism undermines the justice process from initial stop to sentence, and 60 percent of those incarcerated are people of color.  Rates of illiteracy, addiction, and mental illness are disproportionately high.

Amid utter congressional deadlock, sentencing reform is the only issue that has cut across partisan bickering to unite such normally irreconcilable voices as Rand Paul, Dick Durbin, Ted Cruz, Elizabeth Warren, Paul Ryan and John Conyers.  Yet the proposed Smarter Sentencing Act, which passed the Senate Judiciary Committee in January, has since run aground. The bill would halve key mandatory minimums, make relief under the Fair Sentencing Act available to 8,800 federal crack defendants locked up before 2010 and save $4 billion in the process.  More than 260,000 people have been imprisoned under federal drug mandatory minimums, and more will continue to cycle through the system — even as others are granted clemency — as long as reforms remain stalled.  At the state level, reforms without retroactive application strand drug defendants in prison even after the laws that put them there are reassessed as unjust.  The following seven cases epitomize the rigid regimes of the past, and the challenges involved in dismantling them.

October 7, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Sunday, October 05, 2014

Concurrence laments "trend" of federal prosecutors seeking "significantly enhanced terms of imprisonment under the guise of 'relevant conduct'"

An otherwise unremarkable federal drug sentence appeal in the US v. St. Hill, No. 13-2097 (1st Cir. Oct. 1, 2014) (available here)  took on some blogworthy character because of a lengthy concurrence by Judge Torruella. Here is the start, heart and close of Judge Torruella's opinion in St. Hill:

I join the court's opinion but write separately to note a disturbing trend in criminal prosecutions.  All too often, prosecutors charge individuals with relatively minor crimes, carrying correspondingly short sentences, but then use section 1B1.3(a) of the Sentencing Guidelines ("Guidelines") to argue for significantly enhanced terms of imprisonment under the guise of "relevant conduct" — other crimes that have not been charged (or, if charged, have led to an acquittal) and have not been proven beyond a reasonable doubt....

St. Hill was subject to an additional six to eight years in prison due to isolated drug sales not directly related to the twenty oxycodone pills which led to his conviction, all of which he was never arrested for, never charged with, never pleaded guilty to, and never convicted of by a jury beyond a reasonable doubt.  This is a prime example of the tail wagging the dog.  Even more disturbing: the government could, if it so chooses, still charge St. Hill for these uncharged crimes in a separate proceeding, and he could be convicted and sentenced again without protection from the Double Jeopardy Clause.  See Witte v. United States, 515 U.S. 389, 406 (1995)....

[I]f the government intends to seek an increase in a criminal defendant's sentence for conduct that independently may be subject to criminal liability, the government should charge that conduct in the indictment.  The Fifth Amendment requires that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law," U.S. Const. amend. V, while the Sixth Amendment provides an accused with the right to a trial "by an impartial jury," id. amend. VI.  The practice of arguing for higher sentences based on uncharged and untried "relevant conduct" for, at best, tangentially related narcotics transactions seems like an end-run around these basic constitutional guarantees afforded to all criminal defendants.  Cf. Alleyne, 133 S. Ct. at 2162 ("When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.").  The government's role is to ensure justice, both to the accused and to the public at large; it is not to maximize conviction rates and argue for the greatest possible sentence.  And, while it is unclear to me whether this trend is due to shaky police work resulting in cases that cannot be proven beyond a reasonable doubt, prosecutorial laziness, or other less nefarious factors, it remains troubling regardless....

Nevertheless, as a judge, it is my responsibility to faithfully apply the law as articulated by both the Supreme Court and this court, and I do not dispute that both the Guidelines and our interpretation of them currently condone this questionable process.  See Witte, 515 U.S. at 396, 406 (finding no constitutional violation where the sentence was based in part on a cocaine offense that defendant "clearly was neither prosecuted for nor convicted of"); United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) (finding no constitutional violation where the district court "choose[s] to give weight to the uncharged offenses in fixing the sentence within the statutory range if it finds by a preponderance of evidence that they occurred").  I nonetheless question whether this interpretation should be revisited — either by the courts or by revisions to the Guidelines.

October 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Wednesday, October 01, 2014

This is your federal sentencing data on drugs (after the minus-2 amendment)

I could not help but think about the famous 1980s "This Is Your Brain on Drugs" campaign from Partnership for a Drug-Free America once I took a close look at the US Sentencing Commission's latest greatest data on federal sentencing appearing now in this Third Quarter FY 2014 Sentencing Update.  The famous "egg" ad make clear that drugs could scramble your brain, and a "Note to Readers" appearing early in the latest USSC data report makes clear that a recent amendment to the drug sentencing guidelines has started to scrambling cumulative federal sentencing data.

Here is the USSC's "Note to Readers," which highlights why it will prove especially challenging to fully assess and analyze federal sentencing practices in FY14 because of mid-year drug sentencing reforms:

On April 30, 2014, the Commission submitted to Congress a proposed amendment to the sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses.  That amendment will become effective on November 1, 2014 and will be designated as Amendment 782 in the 2014 edition of Appendix C to the Guidelines Manual.  Amendment 782 changes the manner in which the statutory mandatory minimum penalties for drug trafficking offenses are incorporated into the base offense levels in the drug quantity table in section 2D1.1 of the Guidelines Manual.  Specifically, the amendment generally reduces by two levels the offense levels assigned to the quantities described in section 2D1.1 and makes corresponding changes to section 2D1.11.  On July 18, the Commission voted to give retroactive effect to Amendment 782, beginning on November 1, 2014.

On March 12, 2014, the Department of Justice issued guidance to all United States Attorneys regarding the sentencing of drug trafficking offenders in anticipation of an amendment to the guidelines lowering the base offense levels for drug trafficking cases. In that guidance, the Attorney General authorized prosecutors to not object to a defense request for a two-level variance from the sentencing range calculated under the current version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met.  Judges and probation offices have informed the Commission that in some districts the prosecutors themselves are requesting that the court depart from the sentencing range calculated under the Guidelines Manual and impose a sentence that is two levels below that range.

The data the Commission is reporting in this Preliminary Quarterly Data Report appears to reflect those practices.  On Table 1 of this report, the Commission reports the rate at which the sentence imposed in individual cases was within the applicable guideline range. The rate through the third quarter of fiscal year 2014 was 47.2 percent.  This compares with 51.2 percent in fiscal year 2013. However, as can be seen from Tables 1-A and 1-B, most of this decrease is attributable to sentences imposed in drug offenses. As shown on Table 1-A, the within range rate in cases not involving a drug offense was 53.3 percent through the third quarter of fiscal year 2014, compared with 54.8 percent in fiscal year 2013.

Table 1-B presents data for drug cases only.  As shown on that table, the within range rate for sentences imposed in drug cases through the third quarter of fiscal year 2014 was 30.0 percent, a decrease of more than eight percentage points from the rate of 38.8 percent at the end of fiscal year 2014.  This decrease in the within range rate resulted from an increase in the rate at which the government requested a below range sentence, from 39.4 percent in fiscal year 2013 to 45.7 percent through the third quarter of fiscal year 2014, as well as an increase in the rate of non-government sponsored below range sentences, from 20.8 percent in fiscal year 2013 to 23.5 percent through the third quarter of fiscal year 2014.

Because this change in sentencing practices did not occur until more than five months into the fiscal year, the impact of this change is not fully reflected in the average data presented in this cumulative quarterly report.  The Commission expects a further reduction in the within range rate for drug offenses to be reflected in the data for the completed fiscal year 2014. 

October 1, 2014 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, September 30, 2014

Making the full case for Mitt Romney, drug czar

RomneyRegular readers may recall this post from a few months ago in which I highlighted the brilliant and provocative commentary by Mark Osler headlined "Mitt Romney for drug czar." Now I can post Mark's fuller explication of the ideas that lead to the notion of Drug Czar Romney as they appear in this article now available on SSRN headlined "1986: AIDS, Crack, and C. Everett Koop." Here is the abstract:

In 1986, Ronald Reagan’s America confronted twin public health crises: AIDS and crack. There were striking similarities between the two, in that both developed quietly before public alarms were raised; both were identified with traditionally oppressed groups; both spread in a similar pattern; and both created fear in the American public.  Where they differed, though, was in the reaction.  After initial missteps, AIDS was approached through problem-solving doctors and researchers rather than quarantine.  In contrast, crack was confronted with a heavy retributive hand.  AIDS was transformed to a chronic, treatable illness. In contrast, crack not only continued to plague communities, but the use of mass incarceration created new problems.

Four striking personalities shaped these differing outcomes.  With AIDS, the chief strategist was the remarkable C. Everett Koop, and the public face was a young boy named Ryan White.  For crack, a chief strategist was the vituperative William Bennett, and the public face was basketball player Len Bias.  The latter pair drove the fight against crack towards disaster, while the former created a more humane world.

This article argues that it is not too late to learn the lessons of 1986 and take a better approach towards narcotics, and that this approach might best be led by someone who understands the driving force behind drugs (the profit motive) the way that Koop understood the driving force behind AIDS (a virus).  In our present era, that person may be someone who straddles business and politics, such as former presidential candidate Mitt Romney.

September 30, 2014 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, September 18, 2014

"The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options"

The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:

Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing.  The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.

That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways.  Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling.  Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data.

Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations.  So I conclude by considering some of the options available to states.  I point out that the leading contenders -- decriminalization and sentence reduction -- will likely have little effect, since few offenders are in prison on marijuana charges (the only drug for which decriminalization is currently feasible), and all drug offenders serve relatively short sentences, well below the statutory maximums.  I then consider broader options, such as proposals that target the financial incentives prosecutors have to send offenders, including drug offenders, to prison.  I also touch on the implications of adopting broader definitions of "drug offenders," such as those who commit violent or property crimes either to support drug habits or in the course of selling drugs.

September 18, 2014 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, September 09, 2014

Group of world leaders call for end to criminal drug war and urges experiment with legalization

ThAs detailed in this AP report, a prominent group of prominent international leaders "urged a global overhaul of drug policies on Tuesday, calling for some drugs such as marijuana to be regulated, an end to incarceration for drug use and possession, and greater emphasis on protecting public health."  Here are the details:

The Global Commission on Drug Policy said traditional measures in the "war on drugs" such as eradicating acres of illicit crops, seizing large quantities of illegal drugs, and arresting and jailing violators of drug laws have failed. The commission's 45-page report pointed to rising drug production and use, citing the U.N. Office on Drugs and Crime's estimate that the number of users rose from 203 million in 2008 to 243 million in 2012.

The commission includes former U.N. Secretary-General Kofi Annan; the former presidents of Brazil, Chile, Colombia, Mexico, Poland, Portugal and Switzerland; British tycoon Richard Branson and former U.S. Federal Reserve chief Paul Volcker. It was established in 2010 with a stated purpose of promoting "science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies."

The commission's first report in 2011 condemned the drug war as a failure and recommended major reforms of the global drug prohibition regime. This report goes further, encouraging experiments in legally regulating markets in currently illicit drugs "beginning with but not limited to cannabis, coca leaf and certain novel psychoactive substances."

It called for "equitable access to essential medicines, in particular opiate-based medications for pain," noting that more than 80 percent of the world's population has little or no access to such medications. It also called for an end to criminalizing people for drug use and possession, a halt to "compulsory treatment" for such people, and alternatives to incarceration for non-violent, low-level participants such as farmers, couriers and others involved in producing, transporting and selling illegal drugs.

"The facts speak for themselves," said Annan, who is also the convener of the West Africa Commission on Drugs. "It is time to change course." He said drug policies must be based on what works, not on policies that criminalize drug use while failing to provide access to effective prevention or treatment. "This has led not only to overcrowded jails but also to severe health and social problems," Annan said in a statement.

Former Brazilian president Fernando Henrique Cardoso said the ultimate goal must be reform to permit legal regulation. "Let's start by treating drug addiction as a health issue — rather than a crime — and by reducing drug demand through proven education initiatives," he said. "But let's also allow and encourage countries to carefully test models of responsible legal regulation as a means to undermine the power of organized crime, which thrives on illicit drug trafficking."

The full report from this Global Commission can be accessed at this link.

September 9, 2014 in Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, September 07, 2014

Editorial laments how some part of Ohio are "addicted to prisons"

The Toledo Blade has this lengthy new editorial headlined "Addicted to Prisons" that discusses lots of interesting facets of Ohio's criminal justice system. Here are excerpts:

Stark differences in judges, as well as access to local treatment programs, have created appalling disparities in how justice is handed out to addicts and nonviolent drug offenders in Ohio.  Two cases involving heroin addicts, portrayed today in a front-page column by The Blade’s deputy editorial page editor, Jeff Gerritt, show what Ohio is doing right and what it continues to do wrong.

In Hardin County, Kaylee Morrison, 28, was just sentenced to four years in prison, where she will cost taxpayers $100,000 while failing to get the help she needs to manage her addiction.  In neighboring Marion County, Clayton Wood, 29, was sentenced to drug court, where he gets treated in his community while working full time and paying taxes.

Ohio’s heroin and opioid epidemic has rocked the state’s criminal justice system, flooding its crowded prisons and burdened courts with addicts and minor drug offenders who would be more effectively — and inexpensively — treated in their communities. Of the more than 20,000 people entering Ohio’s prisons each year, the share of inmates admitted for opioid- and heroin-related crimes has increased more than 400 percent in the past 13 years.

Moving Ohio to a more cost-effective, rational, and humane criminal justice system will take, among other things, more drug courts, sentencing and code reforms, and a significant shift of resources from state prisons to community-based treatment programs....

Statistical profiles of the state’s incoming inmates underscore the need for change. They show many low-level offenders with short sentences that community-based sanctions could handle more effectively at a fraction of the $25,000 a year it costs to imprison them.

More than 5,000 people a year go to prison in Ohio for drug crimes, mostly low-level offenses. Almost the same number of incoming prisoners — most of them addicts — have never been arrested for, or convicted of, a violent offense. Moreover, nearly 45 percent of those who go to prison each year in Ohio — almost 9,000 people — serve less than a year. That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.

Incarcerating minor drug offenders is costing Ohio tens, if not hundreds, of millions of dollars. Ohio taxpayers get little return on that investment, as untreated addicts return to their communities unequipped to cope with their disease.

Adult felony drug courts, which combine treatment with more-frequent but shorter sanctions, offer an excellent alternative. Residents of every Ohio county should have access to one. Still, such specialized dockets, with assigned probation officers, exist in fewer than a third of Ohio’s 88 counties....

With or without drug courts, judges need sufficient resources in their communities to treat drug addiction and serve as cost-effective alternatives to incarceration. Such programs give judges more sentencing options.

Nearly 10,000 offenders leave Ohio’s prisons each year with an intense history of addiction. As part of its re-entry efforts, DRC must ensure they are linked to treatment programs immediately after they’re released, including support groups and medication-assisted treatment.

Finally, the administration of Gov. John Kasich and the Ohio Supreme Court, through symposiums and other outreach effects, should educate all Ohio judges on how addiction works. Likewise, the General Assembly must make sure that Ohio’s legal code doesn’t mandate inappropriate or ineffective penalties and sanctions for offenses that are rooted in addiction.

The growing number of addicts and low-level drug offenders in Ohio’s costly and crowded prisons is a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its opioid and heroin epidemic. Changing course will require a far greater understanding of addiction among those who make and execute Ohio’s laws and criminal code, and a seismic shift in resources and investments from the state’s prisons to its struggling communities.

The article referenced in the first paragraph of this editorial is headlined "Criminalizing addiction: Whether drug users go to prison depends on where they live," and it is available at this link.

September 7, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

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