Monday, April 14, 2014

House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill

DownloadCQ News has this important new article on federal sentencing reform developments in Congress under the headline "Goodlatte: Don't 'Jump to Conclusions' on Mandatory Minimums." Here are excerpts:

House Judiciary Chairman Robert W. Goodlatte, R-Va., is not convinced that Congress should scale back mandatory minimum drug sentences, even as the Obama administration and a bipartisan coalition in the Senate step up their efforts to do so.  Goodlatte, speaking to reporters from CQ Roll Call and Politico during a pre-taped interview that aired Sunday on C-SPAN’s “Newsmakers” program, said the severity of drug sentences “is a legitimate issue for us to be examining.”

He noted that his committee has set up a task force to review mandatory minimum sentences and many other aspects of the federal criminal code, and he did not rule out taking up a bipartisan, administration-backed Senate proposal (S 1410) that would reduce some minimum drug penalties by as much as 60 percent.  The Senate could take up the proposal in the coming weeks after the Judiciary Committee approved it 13-5 in March.

Despite signaling his willingness to consider sentencing changes, Goodlatte said, “I want to caution that we shouldn’t jump to conclusions about what is right and what is wrong with the law yet.” Asked whether he believes that some federal prisoners are facing dramatically long sentences for relatively minor drug crimes — a claim frequently made by supporters of an overhaul — Goodlatte expressed skepticism.

“If you’re talking about 25- or 30-year sentences, you’re talking about something that the judge and the jury found appropriate to do above mandatory minimum sentences, because those are five-year and 10-year sentences,” he said.  Regarding the mandatory minimum sentences themselves, he said, “you’ll find that the quantities of drugs that have to be involved are very, very large.”

In the case of marijuana possession, for example, it takes “hundreds” of pounds of the drug to trigger a five-year mandatory minimum penalty and “thousands” of pounds to trigger a 10-year mandatory minimum penalty, Goodlatte said.  “With other drugs that are very potent in much, much smaller doses, those quantities are much, much lower,” he said. “But if you look at it from the standpoint of what someone has to be engaged in dealing, you’re talking about large quantities before you get those minimums.”

The Senate bill, which is supported by conservatives including Ted Cruz, R-Texas, Mike Lee, R-Utah, and Rand Paul, R-Ky., would reduce 10-year minimum sentences for certain drug crimes to five years, while reducing five-year minimum sentences for other drug crimes to two years.  If those drug crimes result in “death or serious bodily injury,” mandatory minimum penalties would be slashed from their current 20 years to 10 years.  In all of the penalties being reconsidered, mandatory sentences are triggered based on the quantity of drugs involved in a particular crime....

Molly Gill, government affairs counsel for the advocacy group Families Against Mandatory Minimums, said in an e-mail that the quantity of drugs involved in a crime is “bad proxy for culpability” and suggested that it should not be used as the basis to defeat proposed changes to fixed drug sentences....

She noted that the independent U.S. Sentencing Commission, which sets advisory sentencing guidelines for the federal judiciary, found in a 2011 study that “the quantity of drugs involved in an offense is not closely related to the offender’s function in the offense.” So-called “drug mules,” for example, physically transport large quantities of narcotics for others but are not themselves major traffickers or kingpins, Gill said.

Even as Goodlatte showed skepticism about lowering mandatory drug sentences, Attorney General Eric H. Holder Jr. kept up his call for Congress to take action on the Senate proposal, known as the Smarter Sentencing Act.

After the Sentencing Commission approved its own changes in drug sentencing guidelines last week — a move that is expected to reduce some drug offenders’ penalties by an estimated 11 months — Holder urged Congress to follow up with more sweeping, statutory changes. “It is now time for Congress to pick up the baton and advance legislation that would take further steps to reduce our overburdened prison system,” he said in a statement.  “Proposals like the bipartisan Smarter Sentencing Act would enhance the fairness of our criminal justice system while empowering law enforcement to focus limited resources on the most serious threats to public safety.”

The full video of the interview with Rep. Goodlatte is available at this C-Span archive, and sentencing fans will want to cue the video up to a little after the 10 minute mark. Not long after that point, there is a discussion of federal marijuana policies and then the interview turn to drug sentencing generally. A review of the whole segment makes me a bit less pessimistic about the possibilities of federal sentencing reform making it through the House of Representatives. But being a bit less pessimistic is hardly being optimistic.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

April 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, April 11, 2014

Was it "disrespectful" to the judiciary (or, in fact, quite helpful) for AG Holder to order prosecutors not to oppose application of pending drug sentencing guideline reduction?

The question in the title of this post is prompted by this National Review article, headlined "Judge: Holder ‘Disrespected’ Judicial Branch In Sentencing Change," about a verbal skirmish that emerged during yesterday's US Sentencing Commission meeting to approve formally a small reduction in all federal drug guideline sentences (basics here).  Here are excerpts:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”...

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission — an independent agency within the judicial branch tasked with setting such policies.  Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent. Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.  “For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise.  It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement.

My first reaction to this piece was to be intrigued and pleasantly surprised that Bill Otis was quoted criticizing the nation's top prosecutor for how he seeks to exercise his lawful prosecutorial discretion. (Notably, the author of this NRO piece seems to suggest that the AG should have felt some need to "consult" with a judicial branch agency before announcing a major prosecutorial initiative; I am pretty sure, based on prior debates over the potential problems with unreviewable prosecutorial discretion, that Bill does not believe it would be wise or even constitutional to expect federal prosecutors to have their charging policies reviewed by the judicial branch.)

My second reaction to this piece was to wonder if most federal judges agreed with Judges Pryor and Hinojosa that it was disrespectful and dangerous for the AG to instruct his prosecutors not to object to defense requests to apply the proposed reduced drug guidelines ASAP.  This issue is dynamic and challenging in part because if AG Holder had instructed prosecutors to object to application of these new guidelines until they formally became law in November, then defendants would likely start requesting sentencing delays in all federal drug cases throughout the bulk of 2014.  Because there are about 500 federal drug sentencings every week, this in turn would mean federal district judges nationwide would be receiving motions for sentencing postponements nearly every day for the next seven months.

Notably, just because AG Holder instructs his prosecutors not to object to the application of the proposed new drug guidelines, no judge is in turn obligated to follow the proposed drug guidelines.  Rather, judges now just have an easier time applying this new guidelines, if they so desire, without having to put all their drug cases on hold until November.  That is the context for the DOJ ex-officio representantive on the Commission, Jonathan Wroblewski, suggesting that AG Holder is actually seeking to help and show respect for the judiciary via his instructions to federal prosecutors.

That all said, if the substance of the drug guideline reform proposals now adopted by the Commission were very controversial (i.e., if the Commission itself was split) or if there was reason to believe that Congress and the President might formally reject the drug guideline reform proposal (i.e., if there was wide and vocal expressed opposition), then I think the concerns expressed by Judges Pryor and Hinojosa might be more compelling.  But since these judges themselves both voted with the unanimous Commission to lower the drug guidelines, and since there is momentum in Congress for even more drug sentencing reform, I do not really find AG Holder's exercise of his lawful discretion in this setting all that disrespectful or dangerous.

Some recent related posts:

April 11, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, April 10, 2014

US Sentencing Commission to vote on reducing drug sentencing guidelines

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m."  On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.  

I expect there will be some press reports about the USSC vote on the drug guidelines later today.  In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:

The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.

The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.

The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....

Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”

Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.

For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.

Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....

The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...

But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.

Some recent related posts:

UPDATE:  This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses.  Here is an excerpts from the press release:

The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.

The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.

“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”

In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website.  The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines: 

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

April 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, April 09, 2014

Lots of notable sentencing activity via the Sixth Circuit on this hump day

I have long found that Wednesday seems to be a popular day for circuit sentencing decisions, and today the Sixth Circuit was involved in two notable sentencing actions. 

One action involves the decision, noted in this order, to grant en banc review in US v. Mateen, a statutory interpretation case concerning "whether a state sexual offense that does not necessarily involve a minor or ward can trigger the sentencing enhancement under 18 U.S.C. § 2252(b)(2)."  The (split) Mateen panel held that the sentence enhancement was not applicable, and the en banc grant suggest a majority of the Sixth circuit judges may not agree.

The other action involves a lengthy decision in a MDMA sentencing appeal, US v. Kamper, No. 12-5167 (6th Cir. April 9, 2014) (available here), which gets started this way:

Defendants-appellants Glenn Kamper and Joe Head appeal their respective 144-month sentences imposed for their roles in a conspiracy to manufacture and distribute MDMA (also known as 3,4-methylenedioxymethamphetamine or “ecstasy”) in Chattanooga, Tennessee. Head and Kamper both appeal their sentences as procedurally and substantively unreasonable. Kamper argues that the MDMA-to-marijuana equivalency ratio underlying his Guidelines sentencing range is based on faulty science, and that the district court erred when it justified its refusal to reject the Guidelines ratio with institutional concerns. We conclude that the district court misunderstood its authority to reject and replace a Guidelines equivalency ratio based on policy disagreements, but conclude that the district court’s error was harmless. We reject Kamper’s other arguments regarding the reasonableness of his sentence as without merit. Head argues that the district court erred in applying sentencing enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. We conclude that Head’s sentence must be vacated because the district court erred in applying a sentencing enhancement for obstruction of justice. Accordingly, we AFFIRM the judgment of the district court with respect to Kamper, but REVERSE the judgment of the district court with respect to Head and REMAND for resentencing.

April 9, 2014 in Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, April 08, 2014

AG Eric Holder advocates for Smarter Sentencing Act in testimony to House Judiciary Committee

As reported via this DOJ press release, Attorney General Eric Holder testified this morning before the US House Committee on the Judiciary.  Here are parts of the AG's prepared remarks that should be of interest to sentencing fans:

Across the board, the Department’s comprehensive efforts reflect our commitment to integrity and equal justice — in every case and circumstance.  And nowhere is this commitment stronger than in our work to strengthen America’s federal criminal justice system. Through the Smart on Crime initiative I announced last August, my colleagues and I are taking action on a number of evidence-based reforms — including modifications to the Department’s charging policies with regard to mandatory minimum sentences for certain nonviolent, low-level drug crimes.  This commonsense change will ensure that the toughest penalties are reserved for the most dangerous or violent drug traffickers.  And I’m pleased to note that Members of this Committee have shown tremendous leadership in the effort to codify this approach into law.

I’ve been proud to join many of you in supporting the bipartisan Smarter Sentencing Act — introduced by Representatives Scott and Labrador and cosponsored by Ranking Member Conyers — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.  And I pledge to keep working with leaders like you — and like Senator Rand Paul and others — to address the collateral consequences of certain convictions, including felony disenfranchisement policies that permanently deny formerly incarcerated people their right to vote.

We will never be able to simply arrest and incarcerate our way to becoming a safer nation. That’s why we need to be both tough and smart in our fight against crime and the conditions and behaviors that breed it.  And this struggle must extend beyond our fight to combat gun-, gang-, and drug-fueled violence — to include civil rights violations and financial and health care fraud crimes that harm people and endanger the livelihoods of hardworking Americans from coast to coast.

UPDATE: As highlighted in this Politico report, headlined "Eric Holder at center of marijuana debate," following AG Holder's prepared testimony there was some heated discussion of the topic of federal marijuana policy.  Here is how the Politico piece starts:

Attorney General Eric Holder found himself caught Tuesday in a vast congressional divide over how the federal government should respond to moves states have made to legalize marijuana.

During a House Judiciary Committee hearing, Republicans repeatedly bashed Holder for going too far to accommodate the state actions, while a Democrat pounded the attorney general for refusing to call for a study of whether the federal drug classification system exaggerates the dangers posed by cannabis.

April 8, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, April 07, 2014

If it clearly cost thousands of innocent lives through heroin abuse, would most everyone oppose modern marijuana reforms?

I engendered an intriguing debate over research data, criminal drug reform and public safety concerns in my post here last week titled "If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?".  I am hoping to engender a similar debate with the question in the title of this new post, which is my sincere inquiry, directed particularly to those most supportive of modern marijuana reform movements, as a follow-up to this notable new Washington Post article headlined "Tracing the U.S. heroin surge back south of the border as Mexican cannabis output falls."  Here are excerpts:

The surge of cheap heroin spreading in $4 hits across rural America can be traced back to the remote valleys of the northern Sierra Madre. With the wholesale price of marijuana falling — driven in part by decriminalization in sections of the United States — Mexican drug farmers are turning away from cannabis and filling their fields with opium poppies.

Mexican heroin is flooding north as U.S. authorities trying to contain an epidemic of prescription painkiller abuse have tightened controls on synthetic opiates such as hydrocodone and OxyContin. As the pills become more costly and difficult to obtain, Mexican trafficking organizations have found new markets for heroin in places such as Winchester, Va., and Brattleboro, Vt., where, until recently, needle use for narcotics was rare or unknown.

Farmers in the storied “Golden Triangle” region of Mexico’s Sinaloa state, which has produced the country’s most notorious gangsters and biggest marijuana harvests, say they are no longer planting the crop. Its wholesale price has collapsed in the past five years, from $100 per kilogram to less than $25. “It’s not worth it anymore,” said Rodrigo Silla, 50, a lifelong cannabis farmer who said he couldn’t remember the last time his family and others in their tiny hamlet gave up growing mota. “I wish the Americans would stop with this legalization.”

Growers from this area and as far afield as Central America are sowing their plots with opium poppies, and large-scale operations are turning up in places where authorities have never seen them....

The needle habit in the United States has made a strong comeback as heroin rushes into the country. Use of the drug in the United States increased 79 percent between 2007 and 2012, according to federal data, triggering a wave of overdose deaths and an “urgent and growing public health crisis,” Attorney General Eric H. Holder Jr. warned last month.

Although prescription painkillers remain more widely abused and account for far more fatal overdoses, heroin has been “moving all over the country and popping up in areas you didn’t see before,” said Carl Pike, a senior official in the Special Operations Division of the Drug Enforcement Administration.

With its low price and easy portability, heroin has reached beyond New York, Chicago and other places where it has long been available. Rural areas of New England, Appalachia and the Midwest are being hit especially hard, with cities such as Portland, Maine; St. Louis; and Oklahoma City struggling to cope with a new generation of addicts. Pike and other DEA officials say the spread is the result of a shrewd marketing strategy developed by Mexican traffickers. They have targeted areas with the worst prescription pill abuse, sending heroin pushers to “set up right outside the methadone clinics,” one DEA agent said.

Some new heroin users begin by snorting the drug. But like addicts of synthetic painkillers who go from swallowing the pills to crushing and snorting them, they eventually turn to intravenous injection of heroin for a more powerful high. By then, experts say, they have crossed a psychological threshold — overcoming the stigma of needle use. At the same time, they face diminishing satisfaction from prescription pills that can cost $80 each on the street and whose effects wear off after four to six hours. Those addicts are especially susceptible to high-grade heroin offered for as little as $4 a dose but with a narcotic payload that can top anything from a pharmacy.

Unlike marijuana, which cartel peons usually carry across the border in backpacks, heroin (like cocaine) is typically smuggled inside fake vehicle panels or concealed in shipments of legitimate commercial goods and is more difficult to detect. By the time it reaches northern U.S. cities, a kilo may be worth $60,000 to $80,000, prior to being diluted or “cut” with fillers such as lactose and powdered milk. The increased demand for heroin in the United States appears to be keeping wholesale prices high, even with abundant supply.

The Mexican mountain folk in hamlets such as this one do not think of themselves as drug producers. They also plant corn, beans and other subsistence crops but say they could never earn a living from their small food plots. And, increasingly, they’re unable to compete with U.S. marijuana growers. With cannabis legalized or allowed for medical use in 20 U.S. states and the District of Columbia, more and more of the American market is supplied with highly potent marijuana grown in American garages and converted warehouses — some licensed, others not.  Mexican trafficking groups have also set up vast outdoor plantations on public land, especially in California, contributing to the fall in marijuana prices.

“When you have a product losing value, you diversify, and that’s true of any farmer,” said David Shirk, a Mexico researcher at the University of California at San Diego. “The wave of opium poppies we’re seeing is at least partially driven by changes we’re making in marijuana drug policy.”

I find this article fascinating in part because it highlight one (or surely many dozen) serious unintended consequences of modern marijuana reforms in the United States. I also find it fascinating because, just as my prior post explored some possible public safety benefits of consumers switching from alcohol use to marijuana use, this article spotlights some possible public safety harms of producers switching from marijuana farming to opium farming.

Some recent related posts:

Cross-posted at Marijuana Law, Policy and Reform

April 7, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (11) | TrackBack

"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"

JPI reportThe title of this post is the title of a new report by the Justice Policy Institute, which was released last week, is available here, and is summarized via this press release.  Here are excerpts from the press release:

As Virginia lawmakers consider a budget that would see corrections spending surpass a billion dollars in general funds, a new report points to racial disparities, skewed fiscal priorities, and missed opportunities for improvements through proposed legislation, and calls for reforms to the commonwealth’s sentencing, corrections and criminal justice system.

According to Billion Dollar Divide Virginia’s Sentencing, Corrections and Criminal Justice Challenge, ... while other states are successfully reforming their sentencing laws, parole policies and drug laws, Virginia is lagging behind and spending significant funds that could be used more effectively to benefit public safety in the commonwealth....

According to the report, approximately 80 percent of the corrections budget is being spent on incarcerating people in secure facilities, while only about 10 percent of the budget is spent on supervising people in the community. Put another way, in 2010 for every dollar the Commonwealth of Virginia spent on community supervision, it spent approximately $13 on costs for those incarcerated. Other states have a better balance between prison spending, and supporting individuals in the community.

"Taxpayers' wallets – and more important, people's lives – are in jeopardy," said Marc Schindler, executive director of JPI. "Instead of planning to spend more than $1 billion on an ineffective corrections system, Virginia should be looking to policies that are being implemented successfully in other states to make wiser use of precious resources and get better public safety outcomes.”...

The report describes challenges facing Virginia’s sentencing, corrections and criminal justice system, including:

  • Worrisome racial and ethnic disparities in how the state deals with drugs and drug crimes: African Americans make up approximately 20 percent of the Virginia population, but comprise 60 percent of the prison population, and 72 percent of all people incarcerated for a drug arrest.  JPI has compiled information for the largest Virginia cities and counties that show the disparities in drug enforcement, and the latest data show Virginia’s drug arrest rates on the rise;
  • More people serving longer sentences and rising length-of-stay: The changes to Truth-in-Sentencing enacted in the 1990s eliminated parole, and reduced access to earned-time and good-time credits.  The commonwealth has added more mandatory minimums that have lengthened prison terms, and about one quarter of all of Virginia’s mandatory minimum sentences involve drug offenses.  Between 1992 and 2007, there has been a 72 percent increase in individuals serving time for drug offenses.  There has also been a substantial and very expensive increase in the number of elderly individuals incarcerated in Virginia, despite strong evidence that these individuals pose little threat to public safety....

April 7, 2014 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Wednesday, April 02, 2014

"Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"

The title of this post is the headline of this notable new Huffington Post piece.  Here are excerpts:

Several organizations representing state and local law enforcement are quietly trying to kill a bipartisan bill that would roll back tough mandatory sentences for people convicted of federal drug offenses under legislation passed during the height of America’s drug war three decades ago.

These groups include the National Sheriffs' Association, the International Association of Chiefs of Police, the National Narcotic Officers' Associations' Coalition, the National Association of Police Organizations and the Major County Sheriffs' Association, The Huffington Post has learned.

They hope to weaken congressional support for the Smarter Sentencing Act, which would reform the nation's mandatory minimum statutes, authorizing federal judges to sentence drug defendants to less time behind bars than what current law requires. The legislation passed the Senate Judiciary Committee in January, when, in a rare instance of bipartisan collaboration these days, Republicans Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona joined the committee’s Democrats in supporting the measure. Its House counterpart is still sitting in committee....

Major drug dealers “need to be locked up somewhere,” [Bob] Bushman [president of the National Narcotic Officers' Associations' Coalition, one of the groups fighting the bill] told HuffPost. “Some of these folks have worked hard to get to prison."...

A number of law enforcement agencies have already joined advocacy groups like the ACLU in endorsing the bill. They include the Major Cities Chiefs Association, the International Union of Police Associations, the American Correctional Association, the International Community Corrections Association and the American Probation and Parole Association. Attorney General Eric Holder backs the measure as well.

Bushman and his allies, however, aren’t the first law enforcement advocates to speak out against the bill. The Federal Law Enforcement Officers Association and the National Association of Assistant United States Attorneys have also come out against federal sentencing reform in recent months. Unlike Bushman’s cohorts, both of these groups represent officials who work for the federal government, and both have stated their positions in public.

The National Narcotic Officers' Associations' Coalition, the National Sheriffs' Association and the other state and local groups have been working behind the scenes. Several of them had previously lined up against Debo Adegbile, the president's nominee to head the Justice Department's Civil Rights Division, and helped block his confirmation last month.

Lobbyists with the National Association of Police Organizations and other groups met with Sens. Dianne Feinstein (D-Calif.), Kay Hagan (D-N.C.), Amy Klobuchar (D-Minn.) and John Walsh (D-Mont.) to discuss their opposition to the reform package. A spokeswoman for the International Association of Chiefs of Police confirmed that the organization was lobbying against changes on Capitol Hill, but said it wasn't prepared to speak publicly on the topic.

Fred Wilson, an official with the National Sheriffs' Association, said his group isn't formally opposed to the legislation in principle but believes the bill needs more study -- even though it has already passed through the Senate Judiciary Committee. "It may be [late], but our legislative folks seem to think not all is lost," Wilson said.

A letter from Bushman and his group to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) -- just one of several letters written by the Smarter Sentencing Act opponents that Bushman said are floating around Capitol Hill -- argues that federal policy should not be driven by "second-order effects of America’s drug problem" like incarceration costs....

Bushman said it was "a little early" to talk about whether law enforcement groups could be won over with a compromise bill this time, but said members of Congress first need to look at the "broader implications" of rolling back mandatory minimums. Democratic congressional aides acknowledged that they have been speaking with a number of law enforcement groups about the bill and said they hoped some of the concerns raised would be addressed, but likewise noted it was still relatively early in the legislative process.

April 2, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (32) | TrackBack

Sunday, March 30, 2014

As heroin concerns grow, so do proposals to increase sentences

Everyone who follows sentencing reform developments knows that it is common for legislative proposals calling for longer prison terms to follow reports of a new or increased crime problem.  The biggest crime problem being discussed these days seems to be heroin use and abuse, and here are two stories from Louisiana and Ohio reporting on proposals to increase drug sentences:

The sentencing reform debate developing around heroin in Louisiana is especially interesting, and here are excerpt from the article linked above:

Heroin-related deaths soared last year from New Orleans to Baton Rouge, and the drug has shown no signs of loosening its grip as the epidemic spills into more and more parishes. On the verge of panic, authorities are warning of a public health crisis that demands new methods of deterrence. “When we’re getting to people, they’re dead,” said Col. Mike Edmonson, the State Police superintendent. “When we’re getting to people, the needle is still hanging out of their skin.”

Against this backdrop, law enforcement officials are supporting legislation to drastically increase prison time for heroin dealers and users, including a bill backed by the influential Louisiana Sheriffs’ Association that would impose a mandatory minimum of two years behind bars — without parole — for anyone caught possessing even a small amount of heroin. House Bill 332 sailed through the House Criminal Justice Committee last week and is attracting bipartisan support, even among lawmakers otherwise skeptical of the “tough-on-crime” policies that have been blamed for Louisiana’s nation-leading incarceration rate.

“I think everybody understands the danger of heroin,” said Rep. Joseph Lopinto, R-Metairie, the committee’s chairman and the author of the bill. “I don’t want to put them away for the rest of their lives, but from the other standpoint, I want to make it enough of a deterrent that when they do get out of prison they say, ‘I’m staying away from that stuff.’ That’s the purpose.”

The proposal, which also would double the mandatory minimum sentence for heroin distribution from five to 10 years, stands in sharp contrast to a package of other legislative measures that aim to reduce the state’s teeming prison population, in part by shortening jail time for nonviolent offenders. And it comes at a time of growing recognition among conservatives and liberals alike that mandatory minimums for drug offenses have strained state coffers while doing little, if anything, to curb crime.

“Louisiana already has the highest incarceration rate in the nation, and part of the reason for that is their history with mandatory minimums for nonviolent drug offenses,” said Lauren Galik, a policy analyst at the Reason Foundation, a libertarian think tank, who has studied the state’s sentencing laws. “It clearly hasn’t served as a deterrent effect if people are still using drugs.” 

March 30, 2014 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (19) | TrackBack

Friday, March 28, 2014

Federal judge robustly defends drug guidelines ... after robustly varying from them

Thanks to this post by Paul Cassell over at The Volokh Conspiracy, titled "Are the federal sentencing guidelines for drug dealing unduly harsh?", I have had a chance to see and read a remarkable 70+-page opinion by US District Judge James Browning in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.  And the validity and role of various uses of judicial discretion after Booker also is front-and-center in this opinion.

I am going to make all my sentencing students read this opinion, and this openning to the opinion helps highlight why it covers so many important issues:

THIS MATTER comes before the Court on Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance, filed March 21, 2013 (Doc. 45)(“Sentencing Memorandum”).  The Court held a sentencing hearing on January 6, 2014. The primary issues are: (i) whether the Court will vary downward to a sentence of 15 months to reflect Defendant Kayla Marie Reyes’ comparatively minimal involvement in an overall drug conspiracy; (ii) whether the Court should vary from the advisory guideline range because of a substantive disagreement, under Kimbrough v. United States, 552 U.S. 85 (2007), with the United States Sentencing Commission’s Guideline ranges for drug trafficking violations, as did the Honorable John Gleeson, District Judge for the United States District Court for the Eastern District of New York, in United States v. Diaz, No. 11-CR-00821-2, 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013); and (iii) whether the Court should consider the costs of incarceration and supervised release in sentencing.  

The Court will vary downward, but not as much as Reyes requests: it will vary to a sentence of 30 months, which the Court concludes best reflects the factors that Congress laid out in 18 U.S.C. § 3553(a).

The Court concludes that Judge Gleeson’s criticisms of the Commission’s Guideline ranges for drug trafficking lack a sound basis.  Accordingly, the Court will not adopt his substantive disagreement under Kimbrough v. United States with the Commission’s Guideline for drug trafficking offenses. The Court varies for reasons tied to the factors in § 3553(a) and to Reyes’ individual circumstances, and not because of a substantive disagreement with the Commission’s ranges for drug trafficking. Finally, the Court will not consider the costs of incarceration and supervised release in sentencing, because the factors in § 3553(a) do not clearly permit the Court to consider costs, and because those concerned about the fiscal implications of criminal justice policy should petition the other branches of government and should not ask the Court to consider such implications in sentencing an individual defendant. 

As this introduction hints, I could readily write a few dozen blog posts about this Reyes opinion (and might do a few more in the weeks ahead). But my most fundamental insight about the opinion appears in the title to this post: Judge Browning makes a very forceful argument in support of the federal drug sentencing guidelines, but he is doing so in a case in which he concludes that they should not be followed. If Judge Browning really thinks these guidelines are so sound, I do not quite understand why he feels it necessary (or even legally appropriate) to vary from them.

March 28, 2014 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, March 27, 2014

USSC Chair talks up "A Generational Shift for Drug Sentences"

I just noticed via the US Sentencing Commission's official website that Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this lengthy speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.” The speech as reprinted runs eight-single-spaced pages, and here is one of many notable snippets:

So what have we learned then about drug sentencing policy in the generation since these federal sentences and guidelines were put into place?  At the state level, we have seen that many states have been able to reduce their prison populations and save money without seeing an increase in crime rates.  Michigan, New York, and Rhode Island all significantly decreased drug sentences, with Michigan and Rhode Island rolling back mandatory minimum penalties for drug offenses.  Each state saw reductions in prison population, accompanied by decreases in crime rates.  South Carolina eliminated mandatory minimum penalties for drug possession and some drug trafficking offenses and increased available alternatives to incarceration for drug offenses.  It too has seen reductions in its prison population and a drop in crime rates.  Other traditionally conservative states like Texas, Georgia, and South Dakota have shifted their emphasis from harsh punishment of drug offenses to a greater focus on alternative approaches, without seeing an increase in crime rates.  Respected organizations like the Vera Institute and the Pew Charitable Trust have studied these state reforms and found positive results.

This real-life experience in the states, together with new academic research, has begun to indicate that drug sentences may now be longer than needed to advance the purposes for which we have prison sentences, including public safety, justice, and deterrence.  Some prominent scholars have written that lengthy periods of incarceration are unlikely to have a deterrent effect and that even the incapacitation effect — keeping dangerous people off the streets — becomes less significant as prisoners get older.

March 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, March 25, 2014

Great coverage of crack crimes and punishments via Al Jazeera America

I am pleased (and a bit overwhelmed) by this huge new series of stories, infographics, pictures, personal stories concerning crack crimes and punishment put together by Al Jazeera America.  Here are links to just some parts of the series:

Waiting on a fix: Legal legacy of the crack epidemic: In the 1980s, the US went to war on crack. Thirty years on, judiciary is still hooked on unfair and unequal sentencing

Documenting the ravages of the 1980s crack epidemic: Renowned documentary photographer Eugene Richards recorded the brutal realities facing communities affected by crack

'Life without parole is a walking death': Andre Badley, imprisoned in 1997 for dealing crack, could spend his life behind bars while bigger dealers go free.

A rush to judgment: In 1986, lawmakers wrote new mandatory crack cocaine penalties in a few short days, using the advice of a perjurer.

March 25, 2014 in Data on sentencing, Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Thursday, March 20, 2014

"Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."

The title of this post is the provocative headline of this interesting new article from The New Republic. Here is a portion of how the piece gets started:

Heroin epidemics don’t come and go randomly, like the McRib. They have clearly identifiable causes — and in this case, by far the largest cause is doctor -prescribed pills. Every year since 2007, doctors have written more than 200 million prescriptions for opioid painkillers. (Consider that there are 240 million adults in the country.)  And about four in five new heroin addicts report that they got addicted to prescription pills before they ever took heroin....

Most people who try opiates don’t get addicted.  But enough do. Since 2002, the total number of monthly heroin abusers has doubled to 335,000 nationwide.  Some of the addicts get the pills through a well-meaning doctor or dentist, and many others swipe leftover pills from their friends or family members.  The result for an addict is the same: Once the pills or money run out, heroin is still available — and cheap.  At about $10 per hit, it can be half the street cost of pills.

“We seeded the population with opiates,” says Robert DuPont, an addiction doctor who served as drug czar under Presidents Nixon and Ford and who is now a harsh critic of opiate over-prescription.  The supply shock from easy access to prescription drugs has pushed heroin use out of cities and into rural and suburban and middle-class areas. Massachusetts reported a staggering 185 heroin deaths outside its major cities since November, and Peter Shumlin, the governor of Vermont, spent his entire “state-of-the-state” address talking about the nearly eightfold increase in people seeking opiate treatment there since 2000.  “What started as an OxyContin and prescription-drug addiction problem in Vermont has now grown into a full-blown heroin crisis,” he said.

In addition to providing an important reminder about the dynamic (and sometimes unpredictable) intersection of medical care, drug abuse and the "war on drugs," this piece also suggests a reason why we might not want to readily assume (or trust) that the medical profession will be an effective and healthy intermediary when debating how best to reform marijuana laws and regulate the use of cannabis-based products as a pain relievers.

March 20, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, March 17, 2014

DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims

Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)

Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011).   This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."  At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."  

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).  

For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings.  This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.

More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.  See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”).  This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold.  See Dorcely, 454 F.3d at 370-71.  Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review).  Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).  

I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question."  Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements.  A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.

Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements.  But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements.  Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.

That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements.  At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.

Some old posts on the Ball case and acquitted conduct sentencing enhancements:

March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Thursday, March 13, 2014

Previewing what AG Holder will say about drug sentencing to US Sentencing Commission

As noted in this prior post, Attorney General Eric Holder is, according to this official agenda, the first scheduled witness at the US Sentencing Commission's important public hearing today on proposed amendments to reduce drug sentencing terms in the federal sentencing guidelines. The full text of what AG Holder says will likely be available on line later today, but this new Washington Post article, headlined "Holder will call for reduced sentences for low-level drug offenders," provides a preview of what he plans to say (which my emphasis below on an especially notable development) and some context for his latest sentencing reform advocacy:

Attorney General Eric H. Holder Jr. on Thursday will urge reduced sentences for defendants in most of the nation’s drug cases, part of his effort to cut the burgeoning U.S. prison population and reserve stiff penalties for the most violent traffickers.

Holder’s proposal, which is expected to be approved by the independent agency that sets sentencing policies for federal judges, would affect 70 percent of drug offenders in the criminal justice system, according to figures provided by Justice Department officials. It would reduce sentences by an average of nearly a year.

“Certain types of cases result in too many Americans going to prison for far too long, and at times for no truly good public safety reason,” Holder plans to tell the U.S. Sentencing Commission, according to excerpts of his testimony provided to The Washington Post. “Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”

Like Holder’s previous criminal justice reforms, the move is likely to be hailed by civil liberties groups and assailed by some lawmakers who think the administration is chipping away at federal policies designed to deter criminals and improve public safety.

The seven-member sentencing panel has proposed an amendment to federal sentencing guidelines and will vote on it as soon as April. Until then, federal judges must refer to current sentencing guidelines. Holder, however, will instruct his prosecutors in a memo Thursday not to press judges to impose the longer sentences in the current guidelines if attorneys for drug offenders seek shorter sentences for their clients that would be permissible under the new policy.

Under current mandatory minimum guidelines, a drug offender convicted of possessing 500 grams of cocaine or 28 grams of crack would face a term of 63 to 78 months. Holder is proposing that the time in such a case be reduced to 51 to 63 months. “By reserving the most severe penalties for dangerous and violent drug traffickers, we can better protect public safety, deterrence and rehabilitation while saving billions of dollars and strengthening communities,” Holder plans to say. The lower sentencing ranges would result in a 17 percent decrease in the average length of time imposed on a drug offender, Justice Department officials said.

Holder’s new sentencing proposal is the latest step in his agenda to revise the criminal justice system. In August, he announced that low-level nonviolent drug offenders with no connection to gangs or large-scale drug organizations would not automatically be charged with offenses that call for severe mandatory sentences. That measure, however, didn’t address the sentencing ranges defendants could face under federal guidelines.

Holder’s latest policy change would reduce the Bureau of Prison population by 6,550 people within five years, according to the Justice Department. Of the more than 216,000 federal inmates, nearly half are serving time for drug-related crimes. At the same time it is seeking to reduce sentences for nonviolent offenders, the Justice Department is putting greater focus on violent traffickers who bring heroin and other drugs into the United States....

Holder’s efforts to reduce the prison population have drawn criticism from Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, and other lawmakers who say the administration is undermining policies that were set up to deter would-be criminals.

But many of Holder’s criminal justice policies have been praised by civil liberties groups and have bipartisan support in Congress. A bill that Holder and the Obama administration support to reform prison sentences includes both Republican and Democratic sponsors, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Mike Lee (R-Utah).

Last week, at the Conservative Political Action Conference at National Harbor, Md., Republican Texas Gov. Rick Perry said that prison reform is one issue on which he agrees with Holder. “There aren’t many things that the president and the attorney general and I agree about. Know what I mean?” said Perry, who ran for president in 2012.

As noted in this post, I will be off-line most of today in order to travel to and participate in a Sixth Circuit oral argument. But I should be able to provide additional coverage and review of all the sentencing reform action taking place today at the USSC's public hearing before the end of the day.

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 13, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 12, 2014

Attorney General to testify about drug guideline reform before US Sentencing Commission

I am pleased and very intrigued to now see from this agenda that the first scheduled witness at the US Sentencing Commission's public hearing scheduled to be held tomorrow morning to receive testimony on proposed amendments to the federal sentencing guidelines is none other than the Honorable Eric H. Holder, Jr., Attorney General of the United States. I was already excited about what would develop as the USSC heard from folks about its proposal to cut the drug sentencing guidelines across the board (discussed here), but I now think this hearing could end up being historic as well as interesting. 

I cannot recall the US Attorney General ever testifying directly before the US Sentencing Commission, even in the wake of Blakely and Booker and all the uncertainty and reform that was being robustly discussed by all the branches during the transformation of the federal sentencing system and the guidelines as a result of major SCOTUS ruling. And though I am not an expert on USSC history, I think this may be the first time that a sitting Attorney General has testified directly at a USSC hearing.

This development confirms my view that AG Holder wants federal drug war reform to be a big part of his legacy, and I think any and everyone interested in the federal sentencing system and the broader national war on drugs ought to pay very close attention to what takes place tomorrow morning in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC.

March 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, March 10, 2014

Should the feds reallocate all drug war resources away from marijuana to heroin now?

The question in the title of this post was my first thought in reaction to this notable news release from the US Department of Justice headlined "Attorney General Holder, Calling Rise in Heroin Overdoses ‘Urgent Public Health Crisis,’ Vows Mix of Enforcement, Treatment. Here are excerpts from the press release:

Calling the rise in overdose deaths from heroin and other prescription pain-killers an “urgent public health crisis,” Attorney General Eric Holder vowed Monday that the Justice Department would combat the epidemic through a mix of enforcement and treatment efforts. As an added step, the Attorney General is also encouraging law enforcement agencies to train and equip their personnel with the life-saving, overdose-reversal drug known as naloxone.

Speaking in a video message posted on the Justice Department’s website, Holder noted that between 2006 and 2010, heroin overdose deaths increased by 45 percent. “When confronting the problem of substance abuse, it makes sense to focus attention on the most dangerous types of drugs. And right now, few substances are more lethal than prescription opiates and heroin,” Holder said....

The complete text of the Attorney General’s video message [includes these passages]:

“When confronting the problem of substance abuse, it makes sense to focus attention on the most dangerous types of drugs. And right now, few substances are more lethal than prescription opiates and heroin.

“Addiction to heroin and other opiates – including certain prescription pain-killers – is impacting the lives of Americans in every state, in every region, and from every background and walk of life – and all too often, with deadly results. Between 2006 and 2010, heroin overdose deaths increased by 45 percent. Scientific studies, federal, state and local investigations, addiction treatment providers, and victims reveal that the cycle of heroin abuse commonly begins with prescription opiate abuse. The transition to — and increase in — heroin abuse is a sad but not unpredictable symptom of the significant increase in prescription drug abuse we’ve seen over the past decade....

“Confronting this crisis will require a combination of enforcement and treatment. The Justice Department is committed to both.

“On the enforcement side, we’re doing more than ever to keep illicit drugs off the streets – and to bring violent traffickers to justice. With DEA as our lead agency, we have adopted a strategy to attack all levels of the supply chain to prevent pharmaceutical controlled substances from getting into the hands of non-medical users. DEA proactively investigates the diversion of controlled substances at all levels of the supply chain. This includes practitioners that illegally dispense prescriptions, pharmacists that fill those prescriptions, and distributors that send controlled substances downstream without due diligence efforts. DEA also uses its regulatory authority to review and investigate new pharmacy applications in targeted areas to identify and prevent storefront drug traffickers from obtaining DEA registrations. And they’re also going after “pill mills.”...

“Of course, enforcement alone won’t solve the problem. That’s why we are enlisting a variety of partners – including doctors, educators, community leaders, and police officials – to increase our support for education, prevention, and treatment. DEA engages in widespread education of pharmacists, doctors, and other health practitioners in the identification and prevention of controlled substance diversion during the healthcare delivery process. In the Northern District of Ohio, for example, the U.S. Attorney convened a summit at the Cleveland Clinic, bringing together health and law enforcement professionals to address that area’s 400-percent rise in heroin-related deaths. And nationwide, the Justice Department is supporting more than 2,600 specialty courts that connect over 120,000 people convicted of drug-related offenses with the services they need to avoid future drug use and rejoin their communities.

March 10, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, March 03, 2014

Detailing the impact and import of Burrage on the federal drug war

The Supreme Court a few weeks ago in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected federal prosecutors' arguments to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant.  Now, via this notable ABC News report headlined "U.S. Drug Cases Getting Rehabbed After Supreme Court Decision," we learn about some of the early impact of this ruling:

A week before actor Philip Seymour Hoffman overdosed on a mix of heroin, cocaine and other drugs, the Supreme Court restrained what one top prosecutor called "the strongest tool" federal authorities have to go after dealers in such cases, and now some U.S. drug prosecutions are getting sent to rehab. "We may not be able to meet the standard of proof in those cases," the U.S. Attorney in Vermont, Tris Coffin, said of overdose cases involving a cocktail of drugs. "It will have some impact."

In fact, a federal judge in Kentucky has already vacated the most severe charge against 53-year-old Harold Salyers, a father who was certain to spend decades in prison after being convicted last year of selling heroin to a man who then died. In Alaska and Ohio, defense attorneys are separately hoping their clients can similarly benefit from the high court's recent decision.

On average, drug traffickers in federal cases are sentenced to less than seven years behind bars.  But "when death or serious bodily injury results," the dealer can face a mandatory minimum of 20 years and as long as life in prison, according to federal law. Federal authorities have long sought the stiffer charge when a dealer's drugs contributed in some way to an overdose.

In January, though, the Supreme Court ruled the dealer's drugs need to do more than just contribute, they need to be "the straw that broke the camel's back," as one Justice Department official put it. That's "problematic," especially in overdose cases where an accused dealer's drugs are not the only drugs involved, according to the official. Nearly half of all overdoses involve multiple drugs, federal statistics indicate. "Now we need to [prove] not that just drugs killed them, but which drugs killed them," said the Justice Department official, speaking on the condition of anonymity....

The Supreme Court decision in Burrage v. United States initially received scant news coverage and only moderate notice since actor Hoffman's overdose -- a case being handled by local authorities in New York that highlights some of the obstacles to bringing federal charges.  Still, top federal prosecutors said they don't believe the high court's decision is "a significant setback" or "a real game-changer for us."

Medical experts will just have to dig deeper to determine a drug's exact role in death, and federal prosecutors rarely seek the stiffer charge anyway, even when an overdose occurs, according to both Coffin and Harvey, the U.S. attorneys. "We're going to be fine" and will bring "most of the cases we want to bring," Harvey said.

But the Justice Department official, speaking on condition of anonymity, said finding medical experts who can determine a drug's exact role is not so easy and "is a big burden on the government." Plus, the official said, the Supreme Court decision could be "a blow" to investigative efforts. "The 20-year mandatory minimum has been tremendously efficient in scaring the dickens out of people so they cooperate up the chain," the official said. "It's been a really good negotiating tool."

There are so many interesting aspects to this Burrage follow-up story, and it highlights for me that it might be very interesting and very valuable for some researchers to assemble and analyze data on how the mandatory minimum sentencing provision at issue in Burrage has been applied in the years before this SCOTUS ruling and how it gets applied in the coming years.

But I especially like and find helpful the candid and astute quotes from the unnamed Justice Department official reprinted at the end of this excerpt. The quote so efficiently and effectively captures the real work and importance of all modern mandatory minimum sentencing terms in the federal system: they mostly exist to reduce "a big burden on the government" by providing a ready and "tremendously efficient" to scare "the dickens out of people so they cooperate up the chain" and thus serve as a "really good negotiating tool."

As I have said before and will say again, for those who favor a big federal criminal justice system having lots of power with limited burdens on a "tremendously efficient" means scare "the dickens out of people so they cooperate" with government officials, the current operating structure and modern application of federal mandatory minimums are still working pretty well despite the setback that Burrage may represent for one of these potent prosecutorial weapons in the drug war. But for those who are suspicious of a big federal criminal justice system having lots of power concentrated in executive branch official not subject to the rule of law or really any regulation or review of how its power gets used (persons that include Senator Rand Paul and yours truly), reform of all federal mandatory minimums seems to be essential to restore fully the vision of limited federal government power and individual rights that inform and infuse the Constitution and the Bill of Rights.

March 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Saturday, March 01, 2014

Notable new federal front in drug war being tried in South Carolina

I was intrigued to see this lengthy article at the Huffington Post headlined "Federal Prosecutor Tries A Radical Tactic In The Drug War: Not Throwing People In Prison." The piece merits a read in full, and here is a taste:

Conway is a small city, with a population of about 16,000. Many residents work in tourism-related jobs in nearby Myrtle Beach. The drugs and gangs have made them feel unsafe at home. Dianne Davis, 56, said she tries "not to let the dark catch me" and described other Conway residents as barricading their doors with two-by-fours. "I want to be able to stand on my porch," Davis said. "I have a beautiful garden."

"There are a lot of gangsters running around in that area," Jimmy Richardson said of the neighborhood where Huckabee Heights is located. Richardson is the chief state prosecutor for Horry County, which includes Conway, and a resident of the city himself.

To South Carolina's top federal prosecutor, however, the troubles in Conway present an opportunity. U.S. Attorney Bill Nettles is testing out a novel approach to dealing with drug-related crime, one that aims to clean up the streets by looking beyond mass arrests and incarceration. Conway is the third city in South Carolina to implement a version of the plan, and federal prosecutors in other states and the Justice Department are watching closely. If the program's success continues in South Carolina, it could become a model for law enforcement across the country.

"What I want to do is to make the people's lives who are law-abiding citizens in this community better," Nettles said on the two-and-a-half-hour drive to Conway from his office in Columbia last month. "Incarceration is no longer the goal, but is one of many tools available to allow you to effect your goal of improving their lives. It represents a fundamental shift, a seismic shift in terms of how you're viewing what you're doing."

"When you declare a 'war on drugs,' the community sees the cops as the occupiers, and the cops see the people in the community as enemy combatants," Nettles said. "Well, that's not the way it's supposed to be."

Nettles' plan is surprisingly straightforward. First, federal and local prosecutors identify local drug dealers with the help of the police, probation officers and community members. Next, they build criminal cases against them by reviewing records for outstanding warrants and conducting undercover drug buys. In most cases, arresting all the dealers would be the next order of business, but Nettles has a different idea.

While high-level dealers are still arrested and prosecuted, some low-level offenders are given another option. For them, Nettles stages something of an intervention. Together with the police, family members, religious leaders and other members of the community, prosecutors present the dealers with the evidence against them and give them a choice: Face the prospect of prison or participate in the pilot project.

The program, officially known as the Drug Market Intervention Initiative, helps the dealers find legitimate jobs and offers them help with drug treatment, education and transportation. The hope is that it provides them with the support and the motivation they need to turn their lives around.

The ones who are chosen know that not everybody gets this chance. The initiative in each city does not have endless resources. So only certain low-level offenders, those with limited criminal histories and no violent crimes in their past, are given the opportunity to avoid prison.

For a period of time, typically more than a year, they are monitored to make sure they remain law-abiding citizens. If they do, they will remain free of the criminal justice system. Until they complete the program, however, the threat of arrest based on the evidence already collected continues to hang over their heads. If officials receive complaints about anyone involved in the program, a judge can sign off on an already prepared arrest warrant....

"These people are being regularly drug tested, they are in a stringent program, and if they fail out or don't show up or quit doing their stuff for work, I'm going to arrest them," Nettles explained. "That is what some people call a motivated employee." Part of their motivation also comes from the fact that a steady paycheck can actually be more lucrative than the drug business. Contrary to the popular image of drug lords rolling in cash, many street-level dealers are barely getting by.

March 1, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 27, 2014

Federal judge rejects as too lenient plea deal for Illinois state judge guilty of drug and gun charges

This local sentencing story from Illinois is notable both for its participants and as a rare example of a federal judge rejecting a plea deal in a drug case for calling for a sentence deemed too low.  The article is headlined "Judge rejects plea deal for former St. Clair County judge in drug case," and here are just some of the interesting particulars:

A federal judge refused Wednesday to accept terms of a plea agreement that would have sent former St. Clair County judge Michael N. Cook to prison for 18 months on drug-related charges.  U.S. District Judge Joe Billy McDade called the sentence “not sufficient” and said the facts of the case supported a longer sentence.  But McDade also said that he would not “throw the book at him” just because Cook was a judge.  He did not suggest what an appropriate sentence would be.

McDade gave Cook and prosecutors until March 19 to try to strike a new deal.  On March 28, Cook is again scheduled to be in court — either to be sentenced on a new agreement or have a date set for trial....

Cook’s plea deal Nov. 8 to a misdemeanor charge of heroin possession and a felony charge of being a drug user in possession of a firearm was made under an unusual provision.  It carried an agreed-upon penalty that took the sentencing discretion away from McDade.  His only option was to accept or reject the deal.  In January, McDade filed an order warning both sides that he disagreed with a pre-sentence report that said there were no reasons to go above sentencing guidelines, which called for six months or less behind bars.

McDade wrote that Cook’s status as a judge, his longtime drug use and the disruption of governmental functions were reasons to go higher.  He also ordered a supplemental report on how Cook’s actions may have affected cases in front of him, and whether it had affected public confidence in the judicial system.

Cook resigned after exposure of a drug scandal that cost the life of Associate Judge Joseph Christ, who died of a cocaine overdose March 10 in the Cook family hunting lodge in Pike County, Ill., about 65 miles northwest of St. Louis.  The scandal also ensnared former probation worker James K. Fogarty and others.  Cook, of Belleville, admitted at his guilty plea that he was a heroin addict.  After his arrest in May outside of the house of his heroin dealer, Sean McGilvery, he entered an intensive in-patient treatment facility.

But authorities were investigating rumors of Cook’s drug use long before Christ’s death. Search warrant affidavits released since the guilty pleas accuse Cook of abusing a variety of illegal and prescription drugs.  One confidential informer claimed in 2012 that Cook had used drugs for a decade.  The affidavits also show frequent and familiar contact between McGilvery and both Cook and Christ....

Cook and McGilvery were arrested May 22.  Fogarty was charged May 24.  McGilvery is serving a 10-year prison term on charges of conspiracy to distribute, and possession with intent to distribute, more than a kilogram of heroin.  Fogarty is scheduled to be sentenced Thursday and faces a five-year term on charges of intent to distribute cocaine and being a drug user in possession of a firearm. He admitted selling drugs to both Cook and Christ.  His sentence could be affected if he can be explicitly linked to Christ’s death.

Cook is the son of Bruce Cook, of Belleville, a well-known personal injury lawyer and major behind-the-scenes player in local and national Democratic Party politics.  Cook was an assistant public defender and former member of his father’s practice.  He was selected as an associate judge in 2007, appointed to a vacancy to be a circuit judge in 2010 and elected to a six-year term, as a Democrat, later that year.

Two men convicted in front of Cook of murder have won retrials after raising concerns about the judge’s drug connections, and some other criminal defendants who appeared before him have been allowed to withdraw guilty pleas.

February 27, 2014 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack