Thursday, February 27, 2014

Seeking a (much?) broader perspective on the modern marijuana reform movement

Today's New York Times has this notable new front-page article headlined "Pivotal Point Is Seen as More States Consider Legalizing Marijuana."  Here are some excerpts:

A little over a year after Colorado and Washington legalized marijuana, more than half the states, including some in the conservative South, are considering decriminalizing the drug or legalizing it for medical or recreational use. That has set up a watershed year in the battle over whether marijuana should be as available as alcohol.

Demonstrating how marijuana is no longer a strictly partisan issue, the two states considered likeliest this year to follow Colorado and Washington in outright legalization of the drug are Oregon, dominated by liberal Democrats, and Alaska, where libertarian Republicans hold sway.

Advocates of more lenient marijuana laws say they intend to maintain the momentum from their successes, heartened by national and statewide polls showing greater public acceptance of legalizing marijuana, President Obama’s recent musings on the discriminatory effect of marijuana prosecutions and the release of guidelines by his Treasury Department intended to make it easier for banks to do business with legal marijuana businesses.

Their opponents, though, who also see this as a crucial year, are just as keen to slow the legalization drives. They are aided by a wait-and-see attitude among many governors and legislators, who seem wary of pushing ahead too quickly without seeing how the rollout of legal marijuana works in Colorado and Washington. “We feel that if Oregon or Alaska could be stopped, it would disrupt the whole narrative these groups have that legalization is inevitable,” said Kevin A. Sabet, executive director of Smart Approaches to Marijuana, which is spearheading much of the effort to stop these initiatives. “We could stop that momentum.”...

At least 14 states — including Florida, where an initiative has already qualified for the ballot — are considering new medical marijuana laws this year, according to the Marijuana Policy Project, which supports legalization, and 12 states and the District of Columbia are contemplating decriminalization, in which the drug remains illegal, but the penalties are softened or reduced to fines. Medical marijuana use is already legal in 20 states and the District of Columbia.

An even larger number of states, at least 17, have seen bills introduced or initiatives begun to legalize the drug for adult use along the lines of alcohol, the same approach used in Colorado and Washington, but most of those efforts are considered unlikely of success this year.

The allure of tax revenues is also becoming a powerful selling point in some states, particularly after Gov. John W. Hickenlooper of Colorado said last week that taxes from legal marijuana sales would be $134 million in the coming fiscal year, much higher than had been predicted when the measure was passed in 2012....

Opponents of legalization, meanwhile, are mobilizing across the country to slow the momentum, keeping a sharp eye on Colorado for any problems in the rollout of the new law there. “Legalization almost had to happen in order for people to wake up and realize they don’t want it,” Mr. Sabet said. “In a strange way, we feel legalization in a few states could be a blessing.”...

While much of the recent attention has focused on these legalization efforts, medical marijuana may also cross what its backers consider an important threshold this year — most notably in the South where Alabama, Georgia and South Carolina are among the states considering such laws....

Election data, compiled by Just Say Now, a pro-marijuana group, showed that the percentage of the vote that came from people under 30 increased significantly from 2008 to 2012 in states that had marijuana initiatives. This youth vote, predominantly Democratic, rose to 20 percent from 14 percent in Colorado, and to 22 percent from 10 percent in Washington, both far above the 1 percent rise in the national youth vote....

A narrow majority of Americans — 51 percent — believe marijuana should be legal, according to a New York Times/CBS News poll conducted last week, matching the result in a CBS News poll the previous month. In 1979, when The Times and CBS first asked the question, only 27 percent wanted cannabis legalized. There were stark differences in the new poll, though. While 72 percent of people under 30 favored legalization, only 29 percent of those over 65 agreed.  And while about a third of Republicans now favored legalization, this was far below the 60 percent of Democrats and 54 percent of independents who did so....

Mason Tvert, director of communications for the Marijuana Policy Project, a leading advocate for legalizing marijuana, said campaigns were already underway to stage aggressive legalization drives in several states over the next couple of years, including Arizona, California, Maine, Massachusetts, Nevada, and possibly Montana. “It is certainly important to maintain the momentum,” Mr. Tvert said,  “But I don’t think we can look at any one election cycle and see what the future holds. This is going to be a multiyear effort.”

I do not disagree with the general view that 2014 is a "watershed year" concerning discussion and debate over marijuana reform (and this was one big reason I developed a taught a seminar on the topic at my law school last Fall). But, as the title of this post highlights, I have come to believe that a much broader set of social and political forces help account for modern marijuana reform movement. The forces include, inter alia, a growing distrust of all government among both left-leaning and right-leaning opinion leaders over the last 15 years, growing evidence that the many aspects of the drug war may do more harm than some drugs, the failure of Big Pharma to provide effective pain relief (without too many side effects) to many who suffer from a range of serious medial problems, and changing labor and economic realities that change to cost/benefit realities of pot prohibition versus pot regulation.

I am happy to see the front-page of the NY Times discuss the various 2014 short-term realities that may impact marijuana reform over the next few years. But I would be especially eager to hear from readers concerning what they think are broader social and political forces that will shape these stories over the next few decades.

Cross-posted at Marijuana Law, Policy and Reform

February 27, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (6) | TrackBack

Wednesday, February 26, 2014

Two notable new commentaries via HuffPost

Though they both both likely merit their own posts, I will have to be content on this busy hump-day afternoon to just provide links to, and recommend folks read in full, these two new commentary pieces at The Huffington Post:

February 26, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, February 23, 2014

Is arrest of Mexican drug lord "a monumental moment in the world's war on drugs"?

The question in the title of this post is drawn from the first sentence of this CNN report headlined "3 reasons why 'El Chapo' arrest matters." Here are excerpts:

The arrest of drug kingpin Joaquin "El Chapo" Guzman is a monumental moment in the world's war on drugs....  Here are three reasons why the arrest of Guzman — now being held by Mexican authorities and sought for extradition by U.S. authorities — matters so much.

1. His legend

Chicago declared him and his use of the city as a drug-dealing hub as Public Enemy No. 1, joining bygone gangster Al Capone in that distinction.  Perhaps most importantly, El Chapo is synonymous with narco culture and its lurid glorification.  Guzman, 56, is the drug kingpin extraordinaire.

El Chapo, which means "Shorty" in Spanish, inspires American rap songs and a genre of Mexican ballads called narcocorridos.  "All I wanna be is El Chapo, Three billion dollars in pesos" is part of the chorus to a 2012 rap by Gucci Mane.

Maybe the most potent message of El Chapo's arrest is how it undermines his most audacious myth -- that he could never be caught again, unfindable in Mexico's back country.  Guzman had been caught once before by Mexican authorities, in 2001, but he escaped from a high-security Mexican prison. Lore holds that he slipped out of the prison by hiding in a laundry basket....

2. One of the world's most wanted

Guzman's drug operation is believed to have penetrated not just all of the Americas, but Europe, Australia and west Africa as well, according to the West Point report. "The United States remains the most important demand market for Sinaloa Federation products —marijuana, cocaine, and methamphetamines.  The European Union and Australia, however, have proven attractive due to the economics of price elasticity and their distance from the supply source," according to the report.

But authorities have been mounting pressure on Guzman's Sinaloa cartel in recent months. His lieutenants have been killed or captured by Mexican authorities.  Earlier police operations yielded a trove of intelligence, including cell phone and other data, a U.S. law enforcement official said. That helped Mexican authorities and U.S. Drug Enforcement Administration agents hunting Guzman gain confidence in recent weeks that they could arrest him.

"Although it's a ridiculous phrase, the world's most wanted drug lord is accurate," said Malcom Beith, author of "The Last Narco," which is about Mexico's drug war.  "There's tons of other drug lords around, but I think the Sinaloa cartel, given its growth, given its influence hemispheric and otherwise, I think that puts him on the top."

Phil Jordan, who spent three decades with the DEA and headed the agency's El Paso Intelligence Center, also characterized Guzman in superlatives.  "When you arrest the most powerful man in the Americas and in Mexico, if you talk to any cartel member, they'll say that he's more powerful than Mexican President Pena Nieto," Jordan said.  "This would be a significant blow to the overall operations not only in the Americas, but Chapo Guzman had expanded to Europe.  He was all over the place."...

3. U.S. indictments

Guzman's arrest has re-energized Mexican and U.S. lawmen who spent years tracking his cartel and yet unable to capture him — until now. The United States doesn't want to see Guzman escape again. That's why they are eager to see him extradited to the United States as soon as possible, where he is named in multiple federal drug indictments and has been on the DEA's most-wanted list.

"It is a significant arrest, provided he gets extradited immediately to the United States," Jordan told CNN.  "If he does not get extradited, then he will be allowed to escape within a period of time."  Added one U.S. official: "Now comes the hard part."  That official was referring to Guzman's extradition to the United States.

This CNN story helps me better understand why the arrest of drug kingpin Joaquin "El Chapo" Guzman is a very big news story and a significant law enforcement achievement. But I doubt many folks look back at the arrest(s) and prosecution(s) of Al Capone as a monumental moment in alcohol Prohibition, and I likewise would be surprised if this recent take-down of El Chapo is deemed monumental in the years to come as a variety of drug lords battle to take over his domain and become the next "world's most wanted drug lord."

I ask the question in the title of this post not to diminish the importance of this recent arrest nor to belittle to considerable efforts of the considerable and important law enforcement effort to capture this very bad guy.  But, like the war on crime or the war on poverty or even the war on terror, I worry that there is never a single "general" (on either side of these wars) whose arrest or death is very likely to significantly alter the enduring battles that seem destined to continue on.

February 23, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Saturday, February 22, 2014

Another weekend review of news and notes from the modern marijuana movement

I have not done a round up for posts from Marijuana Law, Policy and Reform in a few weeks, so here goes:

UPDATE: This new lengthy Washington Post piece provides some historical perspective on all the modern developments discussed above. The piece is headlined "Marijuana’s rising acceptance comes after many failures. Is it now legalization’s time?," and here are its final two paragraphs:

As the rhetorical battle continues and politicians remain cautious about speaking out on marijuana, the facts on the ground are changing fast. The Cannabis Cup, an open-air marketplace the size of two football fields in the San Bernardino Valley, featured open consumption of pot-infused sodas, candies and cookies and displays of whole marijuana plants — staged with virtually no controversy.

“Generations coming up now don’t see what the big deal is,” says Brian Wansolich, 39, wearing a white coat emblazoned with the logo of his online cannabis ratings service, Leafly. “My parents still have moral problems with it, but now they see we can tax this and get states out of trouble. It’s the American way.”

February 22, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Thursday, February 20, 2014

Are we "headed for a crime-riddled future" without mandatory minimums?

The question in the title of this post is drawn from a notable quote toward the end of this notable new article from The Economist. The article is headlined "Sentencing reform: Kinder, gentler; Less time inside for less-serious crimes." Here are excerpts:

Last August Eric Holder, America’s attorney-general, issued a memo to federal prosecutors. It directed them not to charge certain low-level, non-violent, non-recidivist drug defendants without ties to cartels with crimes serious enough to trigger mandatory minimum sentences.  The direct effects of this policy shift seem small: Paul Hofer, a lawyer who specialises in sentencing matters, found that just over 500 of the roughly 25,000 defendants sentenced under federal drug laws in 2012 might have got a smaller rap if Mr Holder’s policy had been in place then.  But it appears to have given sentencing reform a strong shot in the arm.

In early January the United States Sentencing Commission (USSC), the agency that sets sentencing policies for federal courts, published proposed changes to sentencing guidelines, one of which would reduce penalties for some drugs charges....

Congress also seems to be shedding its usual lethargy on the subject. On January 30th the Senate Judiciary Committee sent the Smarter Sentencing Act to the full Senate for a vote. This bill would, first, reduce mandatory minimum sentences for non-violent drug offenders and direct the USSC to lower sentencing guidelines accordingly.  Second, it would make the Fair Sentencing Act of 2010 retroactive, so that anyone imprisoned under the old law could apply to have his sentence reduced....

Not everyone is happy with these changes.  The National Association of Assistant United States Attorneys (NAAUSA), which represents a minority of federal prosecutors, urged senators not to “weaken the benefits of mandatory minimum sentencing” — ie, the fact that harsh sentences terrify defendants into co-operating with prosecutors.  One member of the NAAUSA frets that without mandatory minimums, “we are headed for a crime-riddled future.”

Yet reform continues. Barack Obama has yet to commute many long federal sentences, but the Justice Department wants to find more candidates for presidential clemency.  On February 11th Mr Holder urged states to repeal laws that bar ex-convicts from voting. Anecdotal evidence from federal courts in Tennessee, Vermont and Virginia shows that some judges are already shifting position because they expect the Smarter Sentencing Act to pass.  Advocates for ever-harsher sentences appear to be losing the whip hand.

February 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8) | TrackBack

"Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment

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

The empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late-20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting.

In light of this symposium’s effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices — the trial courts’ processing of contemporary capital cases and federal drug trafficking cases — to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination.

To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.

February 20, 2014 in Death Penalty Reforms, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 17, 2014

Federal judge urges passage of the Smarter Sentencing Act because of "Prisoners I Lose Sleep Over"

The title of this post is drawn from the headline given to this recent commentary piece in the Wall Street Journal authored by senior US District Judge Michael Ponsor. Here are excerpts:

The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor.  The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans — including federal judges like me — have struggled with for more than two decades.

I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge.  My pride in our constitutional system runs bone deep: No system of law has ever existed that tries so hard to be truly fair.  I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases....

For years, I could recite the mandatory terms for crack in my sleep: five years for five grams, 10 years for 50 grams, 20 years for 50 grams with one prior conviction, life without parole for 50 grams with two priors — no discretion, no consideration of specific circumstances.  These mandatory terms (unless the defendant cooperated by implicating others) were the same for low-level couriers, called mules, as for high-echelon drug lords.

By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive.  And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.

The Smarter Sentencing Act would reduce 20-year mandatory sentences to 10, 10-year sentences to five, and five-year sentences to two years.  Increased numbers of offenders with very modest criminal records would not face mandatory sentences at all.  If adopted, the law would also permit thousands of prisoners to seek reduction of their prison terms to bring them in line with the Fair Sentencing Act.  None of these changes would reduce the power of judges to slam the really bad actors. But they would permit judges to do what they are paid to do: use their judgment.

Our vast prison apparatus is too costly, but more important, it is unworthy of us as a free people.  This new statute is well named — now is the time for smarter sentencing.

Some recent related posts concerning Smarter Sentencing Act:

February 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 15, 2014

"Healthcare Not Handcuffs": Will ACA help end the drug war?

JUS13-Web-HCNHC-Header-REL2The title and question of this post is my take on this notable recent report from the ACLU and the Drug Policy Alliance titled "Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform." Here is an excerpt from the report's introduction:

The Affordable Care Act (ACA) is the most significant expansion of healthcare coverage in generations, and there is almost no area of the U.S. healthcare system that is not impacted by the reform in some way.  Even as debate about the ACA continues, it is now the law of the land, and implementation is fully under way.  For criminal justice reform and drug policy reform advocates, the ACA represents a remarkable opportunity to advance efforts to end both mass incarceration and the criminalization-based approach to drug policy often known as the War on Drugs.

Under the ACA, tens of millions of people in the United States will gain healthcare coverage for a broad array of health services and conditions, including, for the first time, substance use and mental health disorders.  Of course, there are also problems with the ACA and its implementation, not the least of which is that millions of people will remain uninsured even after the law is fully operational.  Yet even with these challenges, the ACA sets the stage for a new health-oriented policy framework to address substance use and mental health disorders -- health problems that have been largely relegated to the criminal justice system for more than 40 years.

This is an enormous paradigm shift that has yet to fully register with criminal justice and drug policy reform advocates, let alone with health policy advocates and the general public. The financial benefits of providing substance use disorder treatment instead of incarceration are well established. But by fully incorporating substance use and mental health disorders into healthcare -- by truly treating them as health issues and requiring public and private insurance plans to cover their treatment -- the ACA creates an opening and financial incentives to shift drug policy into a public health framework, undermining the rationale for a criminal justice approach....

The passage and implementation of the ACA coincides with the growing momentum across the political spectrum to end the War on Drugs, reverse the incarceration boom, and abandon criminal justice policies that have resulted in the criminalization of whole communities.  But the paradigmatic shift from criminalization to health will not occur unless criminal justice and drug policy reform advocates seize the moment and leverage the ACA to realize its full transformative potential.

To assist advocates in navigating this new terrain, this paper outlines some of the major provisions of the ACA immediately relevant to criminal justice and drug policy reform (Part One), and then explores specific applications of those provisions, including program and policy examples and suggested action steps (Part Two)....

This is a unique, perhaps even once-in-a-lifetime scenario for criminal justice and drug policy reform advocates: with the ACA, we can start to build true alternatives to the criminal justice response to substance use, the enforcement of which has fundamentally undermined community health and safety.  Addressing substance use as a health condition has the potential to lower health costs, dramatically reduce the number of people involved in the criminal justice system, and improve health outcomes and overall wellbeing for millions of people.

February 15, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

Wednesday, February 12, 2014

Drug sentencing reform talk already impacting federal sentences in Tennessee (and elsewhere?)

Two recent local sentencing stories from Tennessee reporting on two different federal judges imposing reduced sentences in drug cases suggest that all the on-going talk about significant drug sentencing reform coming from the US Sentencing Commission and the US Senate is already impacting the work of federal judges.  Here are the headlines, links and basics:

Federal Judge Varies Downward On Drug Sentence; Says "War On Drugs" A "Dismal Failure"

Federal Judge Sandy Mattice, calling the "War on Drugs" a "dismal failure," on Monday morning varied downward on a sentence for a drug "smurf."

Larry Gertsman had been facing a minimum 121 months in federal prison for his role in obtaining pseudoephedrine pills for a meth cook and for the fact a gun was found at the trailer where the meth was being cooked.

Judge Mattice noted the 121 months was one month more time than he gave to the meth cook, George Alder Jr. He sentenced Gertsman to 90 months in prison.

Judge Mattice said, "When a conspiracy is charged like this, addicts are being prosecuted the same way as the manufacturer." He said some of the sentencing schemes have "outrageous results." He added, "These cases seem increasingly arbitrary."

Judge, Noting That Federal Drug Sentences Are Likely To Be Cut, Gives 3 Whitwell Defendants A Break

Federal Judge Curtis Collier, saying that he expects Congress to lower sentences for drug defendants, on Thursday gave reduced time to three Whitwell residents involved in a major marijuana operation.

Judge Collier, focusing on "sentencing disparity," said Congress seems headed for passage of the Smarter Sentencing Act. He said it has the endorsement of the Department of Justice and support from senators from different political backgrounds. He also said the federal Sentencing Commission has issued guidelines for reduced drug sentences. The act would shift the focus to putting away hardcore and violent defendants in federal prisons.

Judge Collier said sponsors of the bill say that under current sentencing all of the Department of Justice budget is going to be eaten up by the cost to operate federal prisons. The act would basically cut drug sentences in half and also increase the use of the "safety valve" to cut time on mandatory sentences. There was also discussion at the sentencing for Jackie Morrison, Sammy Nance and Ollie Frizzell about some states, including Colorado, legalizing marijuana.

The sentencing range for the ringleader, Morrison, was 121-151 months. He got 72 months. Nance faced 37-46 months and was given 24 months. Ms. Frizzell had a sentencing range of 27-33 months and got 30 months. However, she had already gotten a break for cooperating with the government.

In addition to wondering if there is some special reason that these two notable stories emerge from two different Tennessee federal courts over the last few days, I am especially curious to know if similar trends may be emerging in other federal district courts around the nation.

I have previously noted that early statistics from the US Sentencing Commission suggested that the number of judge-sponsored below-guideline sentences may be increasing ever since AG Eric Holder gave his big ABA speech last August about excessive use of incarceration for low-level offenders.  And now that the USSC has called for an across-the-board reduction of all the drug guidelines and the Senate Judiciary Committee has moved the Smarter Sentencing Act, I could readily imagine that what these two Tennessee federal judges have done is more the norm than the exception in the thousands of low-level drug cases being prosecuted now in federal courts.

February 12, 2014 in Booker in district courts, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (17) | TrackBack

Saturday, February 08, 2014

"On drug sentencing, a growing number of Republicans are ready to shed the party’s law-and-order image in favor of reform"

Jeff FlakeThe title of this post is part of the headline of this notable new Slate piece.  Among other astute points, this piece highlights the generational differences between the members of the GOP who continue to embrace tough (and big) federal criminal justice approaches and other GOP members now embracing reform efforts. Here are excerpts:

“As Christians, we believe in forgiveness,” said [Senator Rand] Paul [in his keynote at the annual American Principles Project conference]. “I think the criminal justice system should have some element of forgiveness.”  There are, sure, human terrors who need to be locked up. “But there are also people who make youthful mistakes who I believe deserve a second chance. In my state, you never vote again if you’re convicted of a felony. But a felony could be growing marijuana plants in college. Friend of mine’s brother did 30 years ago. He has an MBA. But he can’t vote, can’t own a gun, and he’s a house-painter with an MBA, because he has to check a box saying he’s a convicted felon.”

Paul’s audience, consisting of social conservatives, congressional candidates, and radio hosts, listened or nodded along. “These are ideas not many Republicans have talked about before,” Paul said. “I think if we talk about these ideas, we take them to the minority community, often the African-American and sometimes the Hispanic community — 3 out of 4 people in prison are black and brown! But if you look at surveys on who uses drugs, whites and blacks and Hispanic use at about the same rate.  You don’t have as good an attorney if you don’t have money.  Some of the prosecution has tended to go where it’s easier to prosecute people.”

The crowd stayed with him. “I think these are things we should look at. I’m not talking about legalization. I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said.

That line earned a long burst of applause.  Paul was in no danger of losing this crowd. Conservatives were ready to talk about lighter sentences for some criminals and for the restoration of felons’ rights.  Just one week earlier, the Senate Judiciary Committee had approved the Smarter Sentencing Act, co-sponsored by Illinois Sen. Dick Durbin and Utah Sen. Mike Lee.  If signed by the president, it would slash the 30-year-old mandatory minimums for drug crimes.  Ten-year sentences would become five-year sentences.  Five-year sentences would shrink to two years.

Every Democrat had voted “aye” — as had three of the committee’s eight Republicans. The bill isn’t as far-reaching as Paul’s own Justice Safety Valve bill, but it’s moving, and there’s already companion legislation waiting in the House.  The most partisan Congress in anybody’s memory may actually come together to go easier on nonviolent drug offenders....  The U.S. Sentencing Commission, which is being heavily lobbied to change standards, now consists mostly of Obama appointees.  Even the conservative appointees like William H. Pryor Jr., whose judicial nomination was filibustered by Democrats for two years, are advocates for reform.

This is more than a trend. This is a reversal of a trend that helped create the modern Republican Party. After bottoming out in the 1964 election, Republicans surged back in 1966 and won the presidency in 1968.  They cracked the old Democratic coalition, in part because rising crime rates and visions of urban riots sent voters sprinting away from liberalism....

For three more decades, Republicans could win tight elections by capitalizing on the fear of crime.  Democrats met them where they could, to neutralize the issue, because to be called “soft on crime” was to be exiled with Michael Dukakis.  As recently as 2012, a pro-Mitt Romney super PAC could dunk on Rick Santorum by warning voters that the senator “voted to let convicted felons vote.”...

Arizona Sen. Jeff Flake, one of the Judiciary Committee members who voted for the sentencing reform bill, acknowledged that the GOP had long been the “law and order” party.  “But we’ve also been the rational party,” he said. “We’ve been the party of fiscal discipline.  It’s tough to justify some of these incarcerations and the cost.  I understand the argument that it gives law enforcement another card to play, plea bargains — I understand that.  But we’ve gone too far.”

In the Judiciary Committee, the average age of the Republicans who voted for reform —Sens. Ted Cruz, Jeff Flake, and Mike Lee — was 45.  The average age of the Republicans who voted no — Sens. John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, and Jeff Sessions — was 69.  The elder Republicans didn’t want to patronize the new class and didn’t doubt that, in Sessions’s words, “there are some areas where we could reduce the length of incarceration without adversely impacting crime rates.”  But they remembered the bad old days, and the young guys didn’t....

Idaho Rep. Raul Labrador, age 46, sponsored the House companion to the Durbin-Lee reform bill.  He was an immigration lawyer before he entered politics.  “I spent 15 years working in the criminal defense business and seeing people, nonviolent offenders, going to prison,” he explained.  “Then, when I was in the state legislature, I was seeing these budgets continue to grow.  In federal court, you can know a drug dealer, and just the fact that you knew he was about to make a deal, you’d be charged with the entire conspiracy. You’d have a person who was a low-level offender who really had no participation in the conspiracy, and he’d be charged with everything the top trafficker was charged with.  And I don’t think that’s right.  Our Founding Fathers wanted to make it difficult for people to be prosecuted.”

And here’s one of the paradoxes of the new Republican divide. The older class, hewing to law and order, points to the nightmares of the 1970s and 1980s. This isn’t a theoretical discussion. It’s about undoing minimums and social norms that have, sure, generated some awful stories but have played at least some role in plunging crime rates.  “I think the president made a big mistake when he spoke cavalierly about drug use,” said Sessions. “There’s a national effort that saw drug use by high school seniors go from over 50 percent to under 25 percent.  The more we talk about it, the more it goes on television, the more it goes on jokesters’ programs, you’re going to see young people use drugs more.”

The new Republicans, people like Paul, have their own anecdotes, about people their own age — about themselves. Then they skip past the law-and-order era, 200 years back, to the intent of the founders.  Here is a cause whose time should have come many, many years ago.

Some recent and older related posts:

February 8, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (61) | TrackBack

Thursday, February 06, 2014

Opposition by NAAUSA to Smarter Sentencing Act now garnering (too?) much attention

Late last week, Bill Otis over at Crime & Consequences complained in posts here and here about the lack of media coverage regarding the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Based on this new reporting from The Huffington Post, headlined "Drug Warriors Reject Obama Administration's Call For Softer Sentences," it seems that NAAUSA's actions are now garnering considerable media attention.  Here is part of the HuffPost story with this new media reality highlighted:

A group of federal prosecutors is criticizing the Department of Justice’s support for legislation that would soften U.S. drug sentencing policies.

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder last week objecting to his endorsement of the Smarter Sentencing Act. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses.

The letter, signed by NAAUSA president and assistant U.S. attorney Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive.

In the letter, Guthrie insists that the “merits of mandatory minimums are abundantly clear," insisting that they reach "only to the most serious of crimes" and "target the most serious criminals."...

Guthrie did not respond to an interview request, and a NAAUSA representative told HuffPost that the organization had been overwhelmed with media attention and wouldn't be able to respond until Friday at the earliest.

I fear I may be part of the media that is overwhelming NAAUSA with attention, as I made a request late last week through the NAAUSA website for more information about its survey of federal prosecutors concerning federal mandatory minimum sentencing provisions.  As of this writing, I have not heard back from NAAUSA, nor have I been able to find out any new information about the survey.

Interestingly, though, this HuffPost article seems to have gotten some special access to the results of the NAAUSA survey.  Specifically, the HuffPost piece reports on the NAAUSA survey with a number of details that I have not previously seen publicly reported (and about which I am a bit suspicious):

An online poll conducted by the group [NAAUSA] found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while more than 60 percent opposed it....

The group dove into the debate over mandatory minimums after conducting its online survey in early November.  According to that survey, more than 80 percent of assistant U.S. attorneys interviewed don’t believe the criminal justice system is "broken," as Holder suggested in a speech in 2013.  And more than three-quarters of those surveyed said they don’t believe that the justice system disproportionately punishes people of color.

I am a bit suspicious about this recounting of the NAAUSA survey results because I think the survey may have asked generally about mandatory minimum reforms being proposed in Congress and not only about the Smarter Sentencing Act.  The SSA, significantly, does not eliminate any mandatory minimums, it just cuts their lengthy in drug cases; other bills about which NAAUSA may have asked call for much more significant reform of all existing federal mandatory minimums.  I remain eager to actually see the actual survey and the result assembled by NAAUSA because I want to be sure that the specifics of the SSA, and not just mandatory minimum reforms in general, were a focal point of the responses now that the SSA appears to be the main sentencing reform bill getting traction in Congress.

A few recent related posts:

February 6, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Senator Rand Paul telling fellow conservatives to focus on criminal justice reform

Regular readers know I have become a huge fan of Senator Rand Paul because he seem eager to highlight that his principled disaffinity for big government extends to modern criminal justice system.  In turn, I was excited, but not all that surprised, to see this Politico report concerning a recent speech by Senator Paul in which he preached about the importance (and political value) of conservatives giving serious attention to criminal justice reforms:

In the speech sponsored by the American Principles Project, a deeply conservative organization with a special focus on social issues, Paul offered up jokes and wry commentary. But he also sought to bridge the oft-perceived gap between libertarians and strict social conservatives.

“‘Libertarian’ …doesn’t mean ‘libertine,’” he said. “To many of us libertarian means freedom and liberty. But we also see that freedom needs tradition.”

He added: “I don’t see libertarianism as, you can do whatever you want. There is a role for government, there’s a role for family, there’s a role for marriage, there’s a role for the protection of life.” Paul stressed that the value of marriage is economic, as well as “moral” and “religious,” and that those virtues can be communicated through families and communities as well as through the government.

He also singled out criminal justice reform as one area that could help the Republican Party expand and improve its brand. “I think there are things we can and should talk about, as Christians, who believe in forgiveness,” he said. “I think the criminal justice system should have some element of forgiveness.”

Paul, who was elected to the Senate in 2010, has been a crusader on the issue of reforming sentencing for drug-related crimes and finding alternative methods for dealing with non-violent drug offenders. He noted that that’s not a typical Republican policy priority, but advocated talking “about these issues” and taking them to minority communities, where, he said, disproportionate numbers of people are hit hard by tough drug policies.

“I think these are things we can look at,” Paul said. To applause, he continued, “I’m not talking about legalization. I’m talking about making the criminal justice system more fair and giving people a second chance when they serve their time.”

Some recent and older related posts:

February 6, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, February 04, 2014

"Prosecutors Wrong to Oppose Sentencing Reform"

The title of this post is the headline of this new commentary appearing at Main Justice and authored by Jamie Fellner, who is a senior advisor to the US Program of Human Rights Watch and the author "An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty" (discussed here).   Here are excerpts:

Sentencing reform efforts are finally getting some traction after three decades mandatory minimum drug sentencing laws that crammed federal prisons with low-level drug offenders.  A bipartisan bill pending in the US Senate would reduce mandatory minimums for certain drug crimes and give judges some discretion to impose lighter sentences.  Attorney General Eric Holder has endorsed the legislation, saying it "could ultimately save our country billions of dollars in prison costs while keeping us safe."

Some federal prosecutors diagree.  The National Association of Assistant United States Attorneys (NAAUSA) has sent a letter to Holder saying mandatory minimums “reach only to the most serious of crimes.  They target the most serious criminals.  They provide us leverage to secure cooperation from defendants.  They help to establish uniformity and consistency in sentencing.  And foremost, they protect law-abiding citizens and help to hold crime in check.”

An impressive set of claims -- but mostly false.

Mandatory minimums reserved for the most serious criminals?  Hardly.  According to the United States Sentencing Commission, 93 percent of federal drug defendants come from the lower or middle tiers of the drug business; 40 percent were couriers or street level dealers....  As a former US Attorney told me, "The public simply does not realize how many low-level guys are in [federal] prison.... We lock up the lowest fruit in drug conspiracies."...

Nor is it true that mandatory minimums "establish consistency in sentencing."  Mandatory sentences were introduced in the 1980s and 90s amid complaints that judges in different districts were meting out wildly varying sentences for the same crimes.  But mandatory minimum sentencing laws simply shifted the source of disparities from judges to prosecutors.  In some federal districts, prosecutors always charge everything they can throw at the defendants and refuse to negotiate; in other districts, they're more willing to negotiate a lower sentence.  Because of differences in prosecutorial charging and plea bargaining practices, the average drug sentence ranges from a low of 25 months in some districts to a high of 128 months in others.

What mandatory minimums do -- and here we get to the heart of NAAUSA’s opposition --is provide prosecutors with "leverage" to extract guilty pleas and cooperation from defendants.  Leverage is a polite word for coercion.... 

Those who refuse the deal and go to trial get hammered.  The average sentence of drug offenders who don't plead is three times as long those who do.  And in many cases, the “trial penalty” -- the difference between the sentence a defendant would have received if she had pled versus the sentence imposed after trial -- is extraordinarily cruel.  To cite just one case, a Florida woman named Sandra Avery rejected a plea offer of a ten-year mandatory minimum for dealing small quantities of crack.  The prosecutors punished her with a mandatory sentencing enhancement that sent her to prison for the rest of her life....

But what if the threat of high mandatory minimum sentences were the only way prosecutors could get defendants to plead or to cooperate.  Would that be good reason to keep them?  We think not, since securing pleas -- or even encouraging cooperation – has never been considered a legitimate purpose of punishment. Punishment should fit the crime -- not a defendant’s willingness to plead or snitch. How is it justice to convert a refusal or inability to cooperate into a much higher sentence than a particular crime deserves?

The real issue is that prosecutors do not want judges to set sentences.  Mandatory minimum sentencing laws tie judges’ hands, leaving prosecutors with the enormous power to dictate minimum sentences through their charging decisions.  Confronted with that power, 97 percent of federal drug defendants today plead guilty.  Prosecutors are able to rack up convictions without the expense, risks and burdens of trial.

No one likes to relinquish power -- so it is not surprising that at least some prosecutors want to retain the advantages of mandatory minimum sentencing laws.  Cutting back on mandatory minimums would not, however open the floodgates to crime: judges are quite capable of ensuring serious criminals get serious sentences.  But sentencing law reform would make it harder for prosecutors to coerce defendants into pleading guilty. It would deprive prosecutors of a plea bargaining cudgel they never should have been given in the first place.

A few recent related posts:

February 4, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Saturday, February 01, 2014

Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act

Over at Crime & Consequences, Bill Otis complains in posts here and here about the lack of media coverage of the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Specifically, in this post, Bill states that AG Holder's decision to express support for the Smarter Sentencing Act (SSA)  is "contrary to the views, not of dozens, but of hundreds of career lawyers," which "subvert[s] the experience and judgment of the Department's career lawyers" and is thus "a very big story."  In Bill's words, when "hundreds of [DOJ lawyers] take the risks of speaking out against the Attorney General on a matter this important, that is a news story."

I agree that this is a "very big story," especially for those interested in federal sentencing reforms and the use of mandatory minimums in the prosecution of the federal drug war.  Consequently, I am eager to give this story all the attention it merits and to do so in thorough and fair ways to help ensure all federal prosecutors' views on the Smarter Sentencing Act are widely known and widely understood.

Helpfully, a few hours of research on the NAAUSA website provided me with a much fuller understanding of NAAUSA's expressed opposition to the SSA.  This Sept/Oct 2013 NAAUSA newsletter has a lengthy piece headlined "Members Asked to Weigh In on the Debate on Mandatory Minimums," which includes a report of a on-going survey of federal prosecutors in the works concerning their views on MMs.  In turn, this two-page NAAUSA position paper on mandatory minimums thereafter states that a "recent NAAUSA survey documented strong opposition to any weakening of mandatory minimums." And this eleven-page NAAUSA document provides lengthy statements from prosecutors in response to the survey.

In an effort to provide very thorough and fair coverage of prosecutors' views here, I am eager to see (and to post here and publish in the Federal Sentencing Reporter) the survey instrument sent to NAAUSA members and the full results.  The statements from prosecutors reprinted in this document does reveal strong opposition to eliminating federal mandatory minimum provisions.  However, many comments express the strongest concerns about the possibility of eliminating all federal mandatory minimums, whereas the Smarter Sentencing Act endorsed by AG Holder only calls for reducing the length of mandatory minimums only for drug offenses.  

Especially because the SSA is going to be up for further debate in Congress following its passage through the Senate Judiciary Committee, and especially because the views of career DOJ lawyers are very important in this debate, I am genuinely eager to provide here as much coverage of prosecutorial perspectives as possible.  And I would be eager for readers to use to comments to help me fully and fairly cover this "very big story" and ask the right sets of questions of relevant stakeholders as I do.

A few recent related posts:

UPDATED MEDIA COVERAGE: A few helpful commentors have provided links to some additional "new media" coverage of the SSA and prosecutorial perspectives on its proposed reforms.

At TalkLeft in this post titled "Amended Weakened Version of Sentencing Reform Bill Passes Judiciary Comm.," Jeralyn provides a very helpful and effective review of the process through which the SSA was amended and was voted through the Senate Judiciary Committee. I found especially interesting this account of the various amendments offered to the SSA:

In all, Sen. Charles Grassley of Iowa introduced 6 Amendments weakening the bill and adding new mandatory minimums and increased penalties for other offenses. He got 3 of them passed.  The bill, with Grassley's amendments, now includes a new mandatory minimum for sex offenses and makes some sex offenses death penalty eligible.  It increases penalties for domestic violence offenses.  It adds new mandatory minimum sentences for some terror and arms-related crimes.

Grassley didn't get everything he wanted.  His failed amendments included one which would have abolished the Sentencing Commission and another that would have allowed prisoner transfers to foreign countries over the objection of the defendant.

Consistent with the themes of this post, I wonder if career DOJ prosecutors favor abolishing the Sentencing Commission.  To my knowledge, the Bll Otis is the only person who has publicly called for abolishing the US Sentencing Commission, though perhaps again there may be reason to believe Senator Grassley's efforts to this end are channelling the interests of hundreds of prosecutors.  

And at Simple Justice in this post titled "The Great Prosecutor Revolt of 2014 (Update)," Scott notes that Bill Otis is concerned that the "mainstream media isn’t 'covering' the career prosecutor revolt and he indicates that he will be "doing everything [he] can to get [the] story out."

February 1, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (27) | TrackBack

Friday, January 31, 2014

Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

I am quite pleased and excited to see that yesterday the Smarter Sentencing Act (SSA)received significant Republican support within in the Senate Judiciary Committee, with Senators Senators Mike Lee (R-Utah), Jeff Flake (R-Arizona), and Ted Cruz (R-Texas) voting in support of significant reforms to modern drug sentencing rules. Given that there are three other Tea Party Caucus Senators (Jerry Moran (R-Kansas), Rand Paul (R-Kentucky), and Tim Scott (R-South Carolina), I am relatively hopeful that establishment Republicans may not be able to prevent the SSA's passage in the full Senate.

Unfortunately for supporters of drug sentencing reform, establishment Republicans are in control in the House of Representatives, and I assume House Speaker John Beohner and/or other House leaders could quash the SSA if an whenever they might want. But what I do not know, either practically or politically, is whether establishment Republicans in the House want to kill the SSA and/or whether Tea Party players in the House are as eager to see this bill become law as some in the Senate were.

Adding to the practical and political intrigue is the intriguing fact that, as explained in this article, there are now some new mandatory minimums travelling with the SSA thanks to an amendment by the establishment Republicans on the Senate side:

The Senate Judiciary Committee approved the Smarter Sentencing Act of 2013 by a wide margin Thursday, taking a major step toward reducing mandatory drug-related sentences. Amendments attached to the bill, however, would also establish new mandatory sentences for sex crimes, domestic violence and terrorism.

The bill is sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Sen. Mike Lee, R-Utah, and has significant bipartisan support. Its primary aim is to allow greater sentencing flexibility and would reduce various drug-related mandatory minimums from five, 10 and 20 years to two, five and 10 years. It would also allow prisoners with crack cocaine convictions to have their punishments revisited in light of the 2010 law that lessened penalties for the drug.

In a frustrating blow to some reformers, committee members adopted three amendments from Sen. Chuck Grassley, R-Iowa, that would add the new minimum sentences. Committee members voted 15-3 to establish a mandatory minimum sentence of five years for federal sexual abuse crimes and 15-3 to created a 10-year mandatory minimum sentence for interstate domestic violence resulting in death of the victim.

Though I have a general disaffinity for any new mandatory minimums, I am ultimately pleased by additions to the SSA that Senator Grassley added if they will aid passage of the bill. The drug mandatory reductions in the amended SSA would impact tens of thousands of federal cases every year, whereas the new mandatory minimums would likely impact only a few dozen.  I am hopeful that the added minimums might make it that much easier for establishment Republicans to vote for the SSA and for House leaders to bring the bill up for a vote.  (My gut instinct is that perhaps as many as 300 members of the full House would vote for the amended version of the SSA if it gets to a floor vote, but I remain worried it might never do so because of the establishment Republican forces eager to keep this part of the federal government big.) 

Some recent and older posts about the "new politics" of sentencing reform:

January 31, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, January 30, 2014

Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote

I just received a notable news release from Families Against Mandatory Minimums concerning a notable vote today by the US Senate Judiciary Committee.  Here are the basic via the FAMM report:

Today, the U.S. Senate Judiciary Committee passed the first major reconsideration of federal mandatory minimum drug sentencing laws since the Nixon Administration. The Committee voted, 13-5, in support of S. 1410, the Smarter Sentencing Act, a bipartisan bill sponsored by Senators Mike Lee (R-UT) and Richard Durbin (D-IL).

The Smarter Sentencing Act:

  • Reduces mandatory minimum sentences for federal drug offenders by half
  • Narrowly increases the scope of an existing “safety valve” exception to federal drug offenses
  • Allows 8,800 federal prisoners imprisoned for crack cocaine crimes to return to court to seek fairer punishments in line with the Fair Sentencing Act of 2010, a unanimously-passed measure to reduce the racially discriminatory disparity between crack and powder cocaine offenses
  • Requires the U.S. Department of Justice and other federal agencies to compile, and make publicly available on their websites, lists of all federal laws and regulations carrying criminal penalties. This part of the bill addresses growing bipartisan concerns about the issue of “over-criminalization” – that there are too many federal crimes and that people can and do unknowingly and unintentionally break laws and regulations and serve jail or prison time for violations that could be better addressed with fines.
  • Adds new mandatory minimum sentences for sexual abuse, domestic violence, and terrorism offenses

This new piece up at Huffington Post, headlined "Biggest Overhaul in Federal Drug Sentencing in Decades Clears Major Hurdle, Despite Opposition From Heartless Prosecutors," provides more information about who is for and who is against this important legislative development:

Today the U.S. Senate Judiciary Committee passed bipartisan sentencing reform legislation that reduces the federal prison population, decreases racial disparities, saves taxpayer money, and reunites nonviolent drug law offenders with their families sooner. The reforms are supported by a strange bedfellows group of senators, including Senators Mike Lee (R-Utah), Rand Paul (R-Kentucky), Jeff Flake (R-Arizona), Ted Cruz (R-TX), Patrick Leahy (D-VT), Dick Durbin (D-IL), Carl Levin (D-MI) and Sheldon Whitehouse (D-RI). The legislation is opposed by some U.S. prosecutors who continue to defend a harsh, racially unjust system that has led to a greater percentage of black men being locked up in the U.S. than in South Africa at the height of Apartheid.

The bill, the Smarter Sentencing Act, is the biggest overhaul in federal drug sentencing in decades. It would reduce federal mandatory minimum sentences for drug offenses and expand the ability of judges to use their own discretion when sentencing defendants, so that judges can consider the unique facts of each case and each individual before them. It would also make the reform to the crack/powder cocaine sentencing disparity that Congress passed in 2010 retroactive, so that thousands of people sentenced under the old draconian and racially unjust disparity can leave prison early.

Even though U.S. Attorney General Eric Holder urged the committee to reform mandatory minimum sentencing yesterday, the National Association of Assistant U.S. Attorneys took the somewhat rare step of opposing the Attorney General by releasing a letter in opposition to reform. "We do not join with those who regard our federal system of justice as 'broken' or in need of major reconstruction," the organization said. "Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving."

January 30, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (27) | TrackBack

"White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?

WeldonThe title of this post is drawn the headline of this notable new New York Times article, which includes these excerpts:

The Obama administration, in its effort to curtail severe penalties in low-level drug cases, is taking the unprecedented step of encouraging defense lawyers to suggest inmates whom the president might let out of prison early.

Speaking at a New York State Bar Association event Thursday, Deputy Attorney General James M. Cole said the Justice Department wanted to send more names to White House for clemency consideration.  “This is where you can help,” he said, in remarks the Justice Department circulated in advance.  Prison officials will also spread the word among inmates that low-level, nonviolent drug offenders might be eligible to apply for clemency.  

The clemency drive is part of the administration’s effort to undo sentencing discrepancies that began during the crack epidemic decades ago. Offenses involving crack, which was disproportionately used in black communities, carried more severe penalties than crimes involving powder cocaine, which was usually favored by affluent white users....

“There are more low-level, nonviolent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today,” Mr. Cole said. “This is not fair, and it harms our criminal justice system.”

Like lots of lousy crime and punishment reporting, this piece fails to highlight the important realities that (1) any and every federal defendant is "eligible to apply for clemency," but that the Obama Administration (like prior administrations) is historically disinclined to bother to consider seriously any of these applications, and (2) according to this official accounting, there are currently over 3,500 pending pardon and commutation applications at the White House right now.

I am pleaed that a DOJ official is now talking about defense lawyers suggesting inmates whom the president might let out of prison early, but I sense that defense lawyers are doing this a-plenty.  In addition, the US Sentencing Commission surely has a list of all the persons who would benefit from the FSA if it were made fully retroactive.   The White House already has plenty of information (and so many ways to readily find additional information) concerning who could and should sensibly be considered for clemency relief.  The problem is not information, but the courage to walk the walk (rather than just talk the talk) about correcting excessively harsh prison sentencing politicies and practices that are "not fair ... [and] harm our criminal justice system.”

As the rest of the title of this post is meant to highlight, good candidates for clemency are not only crack dealers.  Especially in light of recent reform of state marijuana laws, I think one can validly argue that there are constitutional problems with the sentences being served by federal marijuana offenders like Weldon Angelos and Chris Williams, both of who are current serving lengthy prison terms for doing essentially what is now being done by dozens of licensed marijuana  marijuana dealers every hour of every day in Denver.  Constitutional arguments aside, I think both should quickly go to the very top of the White House clemency list ASAP, especially if Prez Obama really believes what he says about marijuana being really no more harmful than alcohol.

January 30, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 29, 2014

Though Prez Obama ignores sentencing reform in State of the Union, AG Holder talks it up to Senate Judiciary Committee

I was disappointed, but not at all surprised, that during last night's State of the Union address, President Obama showed his distinct unwillingness to be a real leader in the arena of federal sentencing reform.  I had heard rumors that some mention of sentencing reform was possible in SOTU, but I surmise that Prez Obama cares too little about this issue to give it even a brief mention in an hour-long speech about his vision and priorities for the nation.  (In sharp contrast, as highlighted here, President George W. Bush made some quite progressive criminal justice reform comments in both his 2004 and 2005 State of the Union address.)

But while Prez Obama apparently is disinterested in these matters (or thinks they make for bad politics), his Attorney General seems to remain committed to move forward with needed federal sentencing reforms.  Specifically, consider these closing paragraphs in this prepared statement delivered today by AG Eric Holder to the US Senate Committee on the Judiciary:

[O]ur commitment to integrity and equal justice in every case, in every circumstance, and in every community ... is also reflected in the new “Smart on Crime” initiative I announced this past August — to strengthen our federal criminal justice system; to increase our emphasis on proven diversion, rehabilitation, and reentry programs; and to reduce unnecessary collateral consequences for those seeking to rejoin their communities. As part of the “Smart on Crime” approach, I mandated a significant change to the Justice Department’s charging policies to ensure that people accused of certain low-level federal drug crimes will face sentences appropriate to their individual conduct — and that stringent mandatory minimum sentences will be reserved for the most serious criminals.  Alongside other important reforms, this change will make our criminal justice system not only fairer, but also more efficient.  And it will complement proposals like the bipartisan Smarter Sentencing Act — introduced by Senators Dick Durbin and Mike Lee — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.

I look forward to working with Chairman Leahy, distinguished members of this Committee, and other leaders who have shown a commitment to common-sense sentencing reform – like Senator Rand Paul — to help advance this and other legislation.  I thank you all, once again, for your continued support of the Department of Justice.  And I would be happy to answer any questions you may have.

A few recent related posts:

January 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Notable New York story about "gentleman heroin dealer" getting out from under LWOP sentence

A helpful reader alerted me to this fascinating little New York Times story of one federal defendant (of too many) sentenced to LWOP for a first-offende drug crime who later became one federal prisoner (of too few) who got a lower prison term at a resentencing after spending nearly a quarter-century in federal prison.  The story demands a full read, but here is a snippet:

Time for a question to Myles Coker about the origins of a life that he had kept secret from the people closest to him.  How had he gotten started in the heroin trade?  Mr. Coker did not blink.  “It was back in the ’80s,” he said, when he worked for an illegal gambling business.

His son Clifton pulled his chair closer.  “I’ve never heard this part of the story,” he said. Neither had others at lunch at the National Arts Club on Friday.  Among them were Mr. Coker’s lawyer, Harlan Protass, who got him out of prison at age 63, well ahead of the life term he was supposed to serve, and Roland Riopelle, the former federal prosecutor who had put Mr. Coker behind bars.

A star wide receiver in college who is still in excellent shape, Mr. Coker did not use drugs himself.  He ran an entirely legitimate limousine business that had among its clients “The Cosby Show.” The parents of children he coached in Little League held parties to thank him for his devotion.  His wife was a teacher, principal and textbook author; their two sons, Clifton and Kelvin, went through private elementary schools in Manhattan, Poly Prep high school in Brooklyn and top colleges, and have enjoyed professional success.

Unknown to all, Mr. Coker was a gentleman heroin dealer.  His work for an illegal gambling operation — he took bets on sporting events over phones in safe houses in the Bronx — brought him to the home of Anthony Damiani, an overseer of the operation, who lived in Morris Park. “Not at the beginning, but after a few years, all this cash was coming in,” Mr. Coker said. “Once they got into heroin, I was seeing the currency machine for counting cash. They had me carrying it in sacks.”

He was invited to set up distribution in Harlem, and after a few years, took up the offer. “Greed just took me,” Mr. Coker said.  He eventually ran about five or six spots, a business that he said brought him about $25,000 in cash profits per month.... Records kept by one particularly diligent member of the organization showed that Mr. Coker had been supplied with 691,430 glassine bags in 26 months.  In time, 50 people, including Mr. Coker, were arrested. He was sentenced, under federal laws that are no longer in effect, to life without parole.

“He was just gone; we didn’t know where he was,” said Clifton Coker, who was then 10. By phone, the boys’ father told them he was away training a boxer. The boys’ mother, Deborah Coker, consulted a psychologist, who said the children should be told by their father of his whereabouts, but he did not disclose the details of his offense or that the federal authorities had written, “It does not appear that he will be discharged from said custodial sentence prior to his demise.”

Not until Kelvin Coker was at Amherst College and able to work the Internet did the brothers realize that their father was not supposed to ever come back....  The sons went on a campaign to find a way out of prison for their father, and hired Mr. Protass.  With hearty letters from prison guards who praised him for his sterling record as a peacekeeper, and with legal filings by Mr. Protass that Judge Loretta A. Preska of United States District Court said were “some of the best papers I’ve seen,” Mr. Coker was resentenced in August to time served — just under 23 years....

When Mr. Riopelle heard that Mr. Coker had been released, he invited him to lunch. “I want to see people like him succeed,” Mr. Riopelle said.

January 29, 2014 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

Monday, January 27, 2014

SCOTUS unanimously rules in Burrage that causation requirement precludes drug defendant facing mandatory minimum for abuser's death

In its one criminal justice ruling this morning, the Supreme Court today via a unanimous vote in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected an effort by federal prosecutors to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant. Here is the closing paragraph of the opinion of the Court authored by Justice Scalia:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-forcause of the death or injury. The Eighth Circuit affirmed Burrage’s conviction based on a markedly different under­standing of the statute, see 687 F. 3d, at 1020–1024, and the Government concedes that there is no “evidence that Banka would have lived but for his heroin use,” Brief for United States 33. Burrage’s conviction with respect to count 2 of the superseding indictment is therefore re­versed, and the case is remanded for further proceedings consistent with this opinion.

January 27, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack