Tuesday, July 08, 2014

Senators Paul and Booker introducing another important bipartisan CJ reform bill

140707_rand_paul_cory_booker_gty_605As reported in this new Washington Post column, a pair of "freshmen senators eager to expand their national profiles are teaming up to introduce a comprehensive overhaul of the nation's criminal justice system that they say will cut government spending and help make it easier for nonviolent criminals to eventually secure a job." Here are the exciting details:

The proposals set to be unveiled Tuesday by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) are unlikely to advance this year, but address a series of policy and political priorities for both senators. Booker previously served as mayor of Newark and has made the fate of inner city youth a key part of his public service. Partnering with Paul continues Booker's pattern of seeking out Republicans to work with as he casts himself as a bipartisan broker ahead of his election campaign in November for a full term.

Paul has openly discussed running for president in 2016 and has talked regularly about his concern that the nation's prisons are overcrowded with people serving excessive sentences for minor crimes. Such concerns are a key element of his libertarian-leaning philosophy and further cast him as a Republican eager and willing to cross the aisle -- and visit the nation's urban centers -- to seek out policy solutions and gain supporters in areas of the country often ignored by Republicans.

Most of all, aides say the legislation addresses a common concern for Booker and Paul: That the United States accounts for just 5 percent of the world's population, but a quarter of the world's prison population.

The REDEEM Act proposal would encourage states to raise the age of criminal responsibly to 18 years of age; expunge or seal the records of juveniles who commit non-violent crimes before they turn 15; place limits on the solitary confinement of most juveniles; and establish a system to allow eligible nonviolent criminals to petition a court to ask that their criminal records be sealed. Sealing the records would keep them out of FBI background checks requested by employers and likely make it easier for those former offenders to secure a job.

Currently 10 states set the age at which someone can be tried in adult criminal court below 18, a move that the senators said in their statement "sends countless kids into the unforgiving adult criminal system." In hopes of reversing the trend, Booker and Paul propose giving states that change the minimum age preference when applying for federal community police grants. The same preference would be given to states that allow nonviolent offenders to petition to have their criminal records sealed. Once the records are sealed, an offender could lawfully claim that their records don't exist.

Booker said in a statement that the legislation "will ensure that our tax dollars are being used in smarter, more productive ways. It will also establish much-needed sensible reforms that keep kids out of the adult correctional system, protect their privacy so a youthful mistake can remain a youthful mistake, and help make it less likely that low-level adult offenders re-offend."

Paul said, "The biggest impediment to civil rights and employment in our country is a criminal record. Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration."...

The fate of the REDEEM Act is unclear since most legislation introduced this year has failed to advance beyond the committee level, especially in the Senate, where years-long personality-driven disputes over procedure and fiscal policy have essentially driven the chamber to a halt.

But the new proposals help build out the policy portfolios for both senators. Paul unveiled a plan last month that would restore voting rights for nonviolent felons in federal elections. Booker and Sen. Tim Scott (R-S.C.) introduced a proposal in April that would help create hundreds of thousands of jobs for younger Americans, especially minorities struggling to find work.

Senator Rand Paul's press release about the REDEEM Act can be found at this link; Senator Cory Booker's press release about the REDEEM Act can be found at this link.

Some recent and older related posts:

July 8, 2014 in Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack

Notable Third Circuit discussion of revocation of supervised release standards

Hard-core federal sentencing fans eager for some extended summer beach reading should check out today's Third Circuit panel decision in US v. Thornhill, No. 13-2876 (3d Cir. July 8, 2014) (available here). The key facts of the case alone take the Third Circuit more than 15 pages to recite, but the start of the majority opinion efficiently spotlights the legal issue that thereafter gets resolved:

In 1984, Congress enacted the Sentencing Reform Act, a measure which profoundly “revise[d] the old sentencing process.” Mistretta v. United States, 488 U.S. 361, 367 (1989).  One of the reforms effected by the Act was the elimination of special parole and the establishment of a “new system of supervised release.”  Gozlon-Peretz v. United States, 498 U.S. 395, 397 (1991).  The “new system” was codified in 18 U.S.C. § 3583, and included a provision at subsection (g) which mandates the revocation of supervised release and the imposition of a term of imprisonment under certain enumerated circumstances. 18 U.S.C. § 3583(g).

The question we consider is: once § 3583(g)’s mandatory revocation provision is triggered, what guides a district court’s exercise of discretion in determining the length of the defendant’s term of imprisonment?   We conclude that this exercise of discretion is guided by the sentencing factors set forth in 18 U.S.C. § 3553(a).

I do not think there is much groundbreaking in the legal analysis in Thornhill, though a partial dissent by Judge Rendell adds intrigue to the ruling. Here are key paragraphs from the start and ends of the six-page dissent:

I part ways with the majority’s disposition, however, because I would remand so that the District Court can meaningfully consider those sentencing factors in connection with the mandatory imprisonment of Ms. Thornhill upon revocation of her supervised release. The length of her term of imprisonment is squarely at issue, and the § 3553(a) factors should be weighed. This is especially true because the District Court varied upward in giving Ms. Thornhill a sentence of three years....

We simply cannot know how meaningful consideration of the § 3553(a) factors, which we now require, would have affected Ms. Thornhill’s sentence. Speculation on our part as to what the Court might have been considering, and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above-guidelines sentence. In short, Ms. Thornhill deserves to have the rule announced today applied to her case. I respectfully dissent from the majority’s disposition.

July 8, 2014 in Booker in the Circuits, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 05, 2014

High-profile ex-con (who is also an ex-Gov) eager to keep pushing for death penalty abolition

As reported in this AP article, headlined "Ex-Illinois governor Ryan wants to continue anti-death penalty work," the death penalty abolitionist community now has another high-profile advocate newly free to preach the gospel. Here are some excerpts from an interesting article:

George Ryan, an ex-Illinois governor and now an ex-convict, says he’d like to re-engage with the cause he left behind when he went to prison in 2007 — campaigning for the end of the death penalty in the U.S.  “Americans should come to their senses,” Ryan said this week, in an hourlong interview at his kitchen table.

Newly free to speak after a year of federal supervision that followed his more than five years in prison for corruption, Ryan appeared to have recovered some of his old voice and feistiness, in contrast to the subdued figure that emerged a year ago from the federal penitentiary in Terre Haute, Ind., and ducked briefly into a Chicago halfway house.

At his home in Kankakee, south of Chicago, the Republican, 80, held forth on capital punishment, the state of American politics and the criminal justice system — though not the difficult details of his own corruption case.

He said he’d like to spend some time on the national circuit to encourage other states to follow Illinois’ lead in abolishing capital punishment.  That move came in 2011 and stemmed from Ryan’s decision to clear death row in 2003. While he was treated as a champion by death penalty opponents at the time, he acknowledged some public figures now may have trouble openly associating with him. “I’m an ex-convict,” he said. “People tend to frown on that.”

Ryan, who was governor from 1999 to 2003, was indicted in 2003 and convicted in 2006 on multiple corruption counts, including racketeering and tax fraud.  He said he does not plan to discuss the details of the criminal case — to which he always maintained his innocence — though he might in an autobiography he is writing....

He also lashed out at the U.S. justice system, calling it “corrupt” and bluntly contending that the fervor with which he was prosecuted was due in part to his nationally prominent campaign to end the death penalty.  “It put a target on my back when I did what I did,” he said, adding that even prison guards derided and mocked him. “It certainly didn’t win me any favor with the federal authorities.”

It’s unclear whether Ryan’s re-emergence on the public scene will be welcomed.  But at least one former federal prosecutor balked at Ryan’s contention that he may have been singled out because of his death penalty stance. “It’s absurd,” said Jeff Cramer, a former U.S. attorney in Chicago, noting that four of Illinois’ last seven governors have gone to prison.  “It wasn’t his political stand that made him a target. It is what he did. ... He’s trying to rewrite history.”...

[Ryan] also expressed some sympathy for his Democratic successor, Rod Blagojevich, saying the 14-year prison sentence the former governor is serving in Colorado for trying to sell President Barack Obama’s old Senate seat and other pay-to-play schemes was excessive.  The sentence is under appeal. “I wasn’t a fan” of Blagojevich, he said. “Irrespective, his sentence was out of line.”

But Ryan displayed the most passion while discussing capital punishment. Once a fervent advocate of the death penalty, he said he agonized about approving the last execution in Illinois before he issued a ban in 2000. “I killed the guy,” he said of the man who had raped, kidnapped and murdered a 21-year-old Elmhurst woman. “You can’t feel good about that.”

As he contemplated commuting all death sentences in 2003, he said he felt increasing pressure not to do it, including from one influential politician whom he remembers asking him directly not to spare one man convicted of murdering a friend’s daughter. After the commutations, Ryan said the politician never spoke to him again.

July 5, 2014 in Death Penalty Reforms, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, July 03, 2014

Hawaii legislatively eliminates all juve LWOP sentences for all crimes

As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:

Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.

Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.

July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Fascinating suggestion of "Mitt Romney for drug czar"

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

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

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

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

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

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

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

Wednesday, July 02, 2014

"Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"

The title of this post is the title of this notable piece authored by Samuel Weiss now available via SSRN. Here is the abstract:

The Eighth Amendment forbids cruel and unusual punishments.  The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment.  Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.

This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions.  Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court.  Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws.  State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors.  Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty.  Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems.  Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness.  The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, July 01, 2014

Significant (but unpublished!?!) Sixth Circuit ruling finding Lafler prejudice despite defendant's claims of innocence

The Sixth Circuit just released an interesting and important ruling in Sawaf v. US, No. 13-5620 (6th Cir. June 30, 2014) (available here), which grants a white-collar defendant relief based on ineffective assistance of counsel at plea-bargaining based in part on the Supreme Court's recent Sixth Amendment jurisprudence in this area. Here are passages from the Sawaf opinion, which in part highlight why I think this ruling is significant (despite being "unpublished"):

In 2001, Dr. Sawaf, a medical doctor specializing in the practice of urology, was charged with multiple counts of unlawful drug distribution for prescribing narcotic pain medications without a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). It is undisputed that, prior to trial, the Government offered Sawaf a plea bargain that would have resulted in a significantly reduced prison sentence of 41 months instead of the 235-293 month term of imprisonment he would likely receive under the applicable U.S. Sentencing Guidelines if convicted at trial. Upon the advice of his attorney, Sawaf rejected the Government’s plea offer and proceeded to trial, unsuccessfully, where he was convicted and ultimately received a prison sentence of 240 months....

After a careful review of the evidence, the district court found that Sawaf’s attorney had indeed failed to advise him about the applicable sentencing guidelines at any time prior to his trial, resulting in “objectively unreasonable and constitutionally ineffective” assistance of counsel at the pre-trial stage of the proceedings....

Although the district court acknowledged the general presumption of prejudice “created by the significant disparity between the plea offered and the ultimate sentence” that Sawaf received, it nonetheless concluded that Sawaf was not entitled to relief because he had failed to show that he would have accepted the Government’s plea offer but-for his counsel’s ineffectiveness.... [T]he district court determined that Sawaf’s claim that he would have entered a guilty plea if adequately informed was not credible, given Sawaf’s continued insistence that he was innocent, prior to and during the trial, after the trial, and even during the evidentiary hearing, and effectively declined to credit Sawaf with the applicable presumption of prejudice."...

Given Sawaf’s unrelenting insistence as to his innocence, the district court was understandably reluctant to credit Sawaf’s self-serving claim at the evidentiary hearing that he would have pleaded guilty under different circumstances. As the district court emphasized in its opinion, Sawaf’s continued declarations of innocence at the evidentiary hearing undermined the plausibility of his assertion that he would nonetheless have pleaded guilty if he had been properly informed as to the possible consequences of proceeding to trial. On the other hand, to conclude that this information would have had no impact on Sawaf’s decision-making process would undercut the very reasoning for the Supreme Court’s recognition that the Sixth Amendment right to counsel during the plea-bargaining process includes the right to be informed by counsel as to the range of penalties under the applicable guidelines. Lafler, 132 S. Ct. at 1384.... After all, the existence of that right is necessarily rooted, at least in part, in our general understanding that the discrepancy between the punishment resulting from a plea agreement and that which would result from a trial conviction is an important factor that the defendant is entitled to consider in his decision-making process.

More importantly, however, we have consistently declined to conclude that a defendant’s “repeated declarations of innocence” alone preclude the possibility that the defendant would have entered a guilty plea if he had been aware of the consequences of proceeding to trial....  In light of these cases, we are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence.  Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.

I am eager to praise the Sixth Circuit for this notable application of Lafler and its unwillingness to sting the defendant here yet again for maintaining his innocence. But I am also a bit annoyed that this seemingly significant ruling is being left unpublished. Fortunately, in this digital age, even unpublished opinions can be found and heralded, and I am grateful to a helpful reader who made sure I did not miss this one.

July 1, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, June 30, 2014

Ninth Circuit sorts out federal case of CJA payment delayed, then CJA representation denied

It is often said that justice delayed is justice denied. An interesting ruling today from the Ninth Circuit in US V. Tillman, No. 13-10131 (9th Cir. June 30, 2014) (available here), work through what happens when Criminal Justice Act payment is delayed and that leads to CJA representation being denied. Here is the start of the panel opinion in Tillman, which ends up being more about the actions and standing of Tillman's CJA-appointed lawyer rather than the criminal defendant:

This case highlights the tension between judicial efforts to control costs of appointed counsel, the defendant’s constitutional right to have counsel appointed, counsel’s reliance on timely payment of Criminal Justice Act (“CJA”) vouchers, and the delays often present in processing vouchers for payment.  In this unusual interlocutory appeal, John R. Grele and his former client, Markette Tillman, appeal an order removing Grele as counsel, sanctioning him, and referring him to the California State bar for disciplinary proceedings.  Under Flanagan v. United States, 465 U.S. 259 (1984), we lack jurisdiction over Tillman’s claim that counsel was improperly removed. The removal order is nonfinal and not immediately appealable; Tillman has the opportunity to raise this issue on direct appeal, if there is one.  Grele’s petition as to the sanctions order presents a different question, however, because the improper sanctions order not only had an immediate impact on Grele but continues to affect his professional reputation as learned counsel in capital proceedings.  We conclude that mandamus jurisdiction is appropriate to consider the sanctions order, that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.

June 30, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

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

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

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

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

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

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

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

Sunday, June 29, 2014

Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?

The question in the title of this post is part of my take-away from an engaging and spirited debate with Bill Otis and others that I participated in here over at Crime & Consequences.  The debate began when Bill highlighted this disconcerning recent Los Angeles Times article highlighting that prison reforms in California under Gov. Jerry Brown's realignment plans have not been working out as well as Gov. Brown promised and everyone else might have hoped.  Here is an extended passage from the LA Times article: 

Nearly 15 months after launching what he called the "boldest move in criminal justice in decades," Gov. Jerry Brown declared victory over a prison crisis that had appalled federal judges and stumped governors for two decades.  Diverting thousands of criminals from state prisons into county jails and probation departments not only had eased crowding, he said, but also reduced costs, increased safety and improved rehabilitation....

The numbers tell a different story. Today, California is spending nearly $2 billion a year more on incarceration than when Brown introduced his strategy in 2011. The prisons are still overcrowded, and the state has been forced to release inmates early to satisfy federal judges overseeing the system....

Counties, given custody of more than 142,000 felons so far, complain that the state isn't paying full freight for their supervision.  Many jails are now overcrowded, and tens of thousands of criminals have been freed to make room for more.  "The charts are sobering," Senate Public Safety Committee Chairwoman Loni Hancock (D-Berkeley) said at a hearing this year on crime, prison costs and inmate numbers....

In theory, the state would reduce its prison population and save money [through realignment].  Local authorities would take a more active role in rehabilitation and parole — an approach Brown saw as more efficient and effective. "You have to take care of your own," said Diane Cummins, Brown's special advisor on realignment.

The reality, however, is that realignment fell short of Brown's promised achievements. The prison population fell sharply at first, dropping from 162,400 to 133,000, but it is rising again. There now are 135,400 inmates in state custody, a number expected to grow to 147,000 in 2019.

The state Finance Department originally projected that realignment would reduce prison spending by $1.4 billion this fiscal year and that about two-thirds of that savings would be passed on to counties to cover the costs of their new charges. Instead, the state's increased costs for private prison space and the compensation it pays out for county jails, prosecutors and probation departments adds up to about $2 billion a year more for corrections than when Brown regained office.

Without stemming the flow of prisoners into the system, the problems created by crowding continue.  The Little Hoover Commission, an independent state agency that investigates government operations, said in a May report that realignment simply "changed the place where the sentence is served."

One of the biggest effects of realignment is that state and local authorities are releasing inmates early. From October 2011 to June 2013, California jail releases increased by 45,000, according to state data. The biggest rise has been a doubling in the number of inmates freed before doing half their time....  Although there is no hard proof, politicians, researchers and law enforcement officials are debating whether realignment is behind a recent 8% rise in property crime, reversing years of decline.

Brown's advisors counter that freeing jail inmates is safer than releasing state prisoners. But that too is happening. Under federal orders, the state in April and May freed a total of more than 800 prisoners.

Not surprisingly, the tough-on-crime crowd over at C&C is eager to blame these less-than-positive developments on Gov. Brown and/or the democrats in the California legislature and/or the judges and Justices who declared California's overstuffed prisons to be unconstitutional.  But, notably, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and smartly with these enduring problems before they became so acute that federal court intervention was required.  Here is a listing from this blog of some posts noting the debate over creating a sentencing commission in California stretching back to 2006:

Among other realities, a review of this history shows former California Gov. Arnold Schwarzenegger, pushed by police chiefs and district attorneys, initially opposed the creation of a sentencing commission in 2007.  But, by 2009, as the state's ensuring prison problems became even more acute and as consequential federal court orders became even more likely, Gov. Schwarzenegger came to recognize the desparate need for California to have an institution that could bring a data-driven "smart" approach to CJ reform in the state.  Nevertheless, continued advocacy against any commission by the tough-and-tougher crowd in California ultimately precluded (and seemingly still precludes) the creation of such an entity in California.

I do not mean to assert that all would be sunshine and roses in the challenging regulatory state of California if a sentencing commission had been created in 2007 or 2009.  But I do mean to assert that those eager to attack Gov. Brown and/or legislators who have struggled to deal with post-Plata reforms should, at the very least, acknowledge that proponents of a California sentencing commission asserted that the such a commission would have dealt better with prison challenges (and maybe even would have prevented Plata from happening).  In other words, those assailing current developments should at least explain why those who advocated commission-driving smarter policy rather than tougher politics back in 2007 or 2009 would be misguided to assert that the tough-and-tougher crowd in California is arguably most responsible for the current California mess.  

June 29, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, June 28, 2014

Despite ugly execution, Oklahomans still strongly support death penalty

The new article from the Tulsa World, headlined "Most Oklahomans strongly favor death penalty, poll shows," highlights that public opinion has not turned against the death penalty in Oklahoma in the wake of the state's recent struggles with lethal injection. Here are the details:

Most Oklahomans favor the death penalty and find it “morally acceptable,” although a smaller percentage think it deters crime, according to a new Oklahoma Poll. About 74 percent of those surveyed said they favored the death penalty for those convicted of murder. That figure includes about 23 percent of respondents who said they “somewhat favor” the death penalty.

Support for the death penalty is higher in Oklahoma than in the nation as a whole. A 2013 Gallup poll found that 60 percent of Americans favored the death penalty. The national number has declined from a peak of 80 percent support in 1994.

The state also has a higher proportion of conservatives, who tend to favor the death penalty in greater numbers than the nation as a whole. Nearly 83 percent of Oklahoma Poll respondents who identified themselves as conservative said they favored the death penalty. Only about 12 percent of respondents in the Sooner Poll said they “strongly oppose” the death penalty. However, that figure varied with respondents’ age. Almost 40 percent of people from 18 to 44 years old said they opposed the death penalty, while less than 18 percent of those 65 and older were opposed.

The botched April 29 execution of Clayton Lockett apparently did little to influence views on the death penalty, according to the poll results. Nearly 70 percent said the execution did not cause them to begin questioning their views on the death penalty. People younger than 45 were more likely to say Lockett’s execution has influenced their views....

Of those Oklahomans surveyed, only 37 percent said they strongly agreed that the death penalty serves as a deterrent to crime. Nearly 22 percent surveyed said they strongly disagreed with that statement, indicating that at least some respondents support the death penalty even if they don’t believe it deters crime....

Almost 70 percent of Oklahomans polled said they believed the death penalty was “morally acceptable” regardless of whether they thought it should be legal, according to the poll. About 20 percent said they viewed it as “morally wrong.”

A majority of those polled — 58 percent — said lethal injection was the most humane method of execution, compared to 10 percent who favored firing squad. About 9 percent favored the electric chair, and 5 percent advocated for hangings.

June 28, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, June 27, 2014

"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"

The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:

The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.

Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.

The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.

I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.

June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution

Kettle_falls_signI am pleased to see the op-ed pages of the New York Times giving attention to a remarkable federal drug prosecution mving forward in Washington state.  This foreceful commentary by Timothy Egan, headlined "Lock ’Em Up Nation: Mandatory Sentencing for Medical Marijuana," includes these passages:

[In] ruggedly beautiful, financially struggling eastern third of Washington State ... 70-year-old Larry Harvey, his wife, two family members and a friend are facing mandatory 10-year prison terms for growing medical marijuana — openly and, they thought, legally — on their farm near the little town of Kettle Falls.

To get a sense of the tragic absurdity of this federal prosecution, reaching all the way to the desk of Attorney General Eric H. Holder Jr., consider what will happen next month. Pot stores will open in Washington, selling legal marijuana for the recreational user — per a vote of the people. A few weeks later, the Feds will try to put away the so-called Kettle Falls Five for growing weed on their land to ease their medical maladies....

Harvey is a former long-haul truck driver with a bad knee, spasms of gout and high blood pressure. He says he has no criminal record, and spends much of his time in a wheelchair. His wife, Rhonda Firestack-Harvey, is a retired hairdresser with arthritis and osteoporosis. Mr. Harvey says he takes his wife’s home-baked marijuana confections when the pain in his knee starts to flare. The Harveys thought they were in the clear, growing 68 marijuana plants on their acreage in northeast Washington, one of 22 states allowing legal medical marijuana. (Federal authorities say they are several plants over the limit.)

Their pot garden was a co-op among the four family members and one friend; the marijuana was not for sale or distribution, Mr. Harvey says. “I think these patients were legitimate,” Dr. Greg Carter, who reviewed medical records after the arrest, told The Spokesman-Review of Spokane. “They are pretty normal people. We’re not talking about thugs.”

But the authorities, using all the military tools at their disposal in the exhausted drug war, treated them as big-time narco threats. First, a helicopter spotted the garden from the air. Brilliant, except Harvey himself had painted a huge medical marijuana sign on a plywood board so that his garden, in fact, could be identified as a medical pot plot from the air.

This was followed by two raids. One from eight agents in Kevlar vests. The other from Drug Enforcement Agency officers. They searched the house, confiscating guns, and a little cash in a drawer. The guns are no surprise: Finding someone who does not own a firearm in the Selkirk Mountain country is like finding a Seattleite who doesn’t recycle. Still, the guns were enough to add additional federal charges to an indictment that the family was growing more than the legal limit of plants.

Now, let’s step back. The Harveys live in the congressional district of Representative Cathy McMorris Rodgers, who is part of the House Republican leadership. She loves freedom. You know she loves freedom because she always says so, most recently in a press release touting her efforts to take away people’s health care coverage. “Americans must be protected from out of control government,” she stated.

Well, maybe. Unless that government is trying to take away the freedom of a retired couple growing pot to ease their bodily pains. That freedom is not so good. Astonishingly, in our current toxic political atmosphere, Republicans and Democrats joined together last month to vote, by 219 to 189, to block spending for federal prosecution of medical marijuana in states that allow it. Yaayyy, for freedom. There was one dissent from Washington State’s delegation. Yes, Cathy McMorris Rodgers, standing firm for an out of control government instead of defending one of her freedom-loving constituents....

Trial is set for July 28, and the Harveys can’t use legal medical marijuana as a defense, a judge has ruled. All the government has to prove is that the Harvey family was growing marijuana — a federal crime. If they go to prison for a decade, as the mindless statutes that grew out of the crack-cocaine scare stipulate, they would become part of a federal system where fully half of all inmates are behind bars for drug offenses. And one in four of those crimes involves marijuana.

So remember the Kettle Falls Five when all the legal pot stores and their already legal growing facilities open for business in Washington State next month. There will be silly features about cookies and candy bars laced with pot, and discussions about etiquette, dos and don’ts. The press will cite polls showing that a majority of Americans favor legalizing marijuana, and more than 80 percent feel that way about medical cannabis. But in the eyes of the federal government, these state laws are meaningless.

If Larry Harvey, at the age of 70, with his gout and high blood pressure and bum knee, gets the mandatory 10-year term, he’s likely to die in prison, certainly not the last casualty of the assault on our citizens known as the War on Drugs. For him, freedom is just another word his congresswoman likes to throw around on the Fourth of July.

As I have said before and will be saying again and again as more and more states legalize medical marijuana, there are a number of viable constitutional arguments based in the Eighth Amendment that I think could and should limit the federal prosecution and extreme federal sentencing of defendants like the Kettle Falls 5. I hope these defendants press these arguments aggressively and persistently in the months ahead.

In addition, I am pleased that this op-ed calls out Cathy McMorris Rodgers for failing to be eager to support and defend freedom and family values in this context.  Rep. Rodgers says on her official website here that she has a "passion and determination to protect America’s values -- including family, faith, freedom, opportunity, and responsibility."   I hope she gets often pressed on how these values justify the federal government seeking to imprison the Kettle Falls 5 for many years.

Prior related post:

June 27, 2014 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, June 26, 2014

Effective review of debate over federal fraud guidelines in preview of another high-profile insider trading sentencing

Newsweek has this lengthy and effective new article on federal fraud sentencing, headlined "Nonsensical Sentences for White Collar Criminals," which seems prompted in part by the upcoming sentencing of hedge fund trader Mathew Martoma of SAC Capital Advisors LP following his conviction of insider trading. Here are a few excerpts:

[A]s the government’s probation department recommends a sentence [for Martoma] that would be the longest ever for insider trading — anywhere from 15 to 20 years — U.S. judges, federal public defenders, the U.S. Sentencing Commission, the U.S. Department of Justice and the American Bar Association are increasingly calling into question the nation’s sentencing guidelines, which, in the words of one federal judge, “are just too goddamn severe.”...

The biggest quibble judges have with white-collar sentencing guidelines is the fact that prison terms are heavily weighted toward how much money is made or lost on a financial crime, regardless of the circumstances of the offense, whether it is insider trading, embezzlement, a Ponzi scheme or some other type of financial fraud....

The problem, says federal Judge John Gleeson, who represents the Eastern District of New York City, has built up over time, as congressional directives and statutes—often pushed by public pressure to treat offenders more aggressively and rigorously—have acted as what he calls a “one-way ratchet,” boosting the austerity and length of sentences ever higher....

The concerns come at a time when insider-trading cases — a subsection of the U.S. Sentencing Commission’s broader financial fraud category — have nearly tripled over the past three years (2011 to 2013), compared with the prior three years (2008 to 2010), according to commission data.

In sum, insider-trading cases are on the rise, with the money involved and the prison sentences growing even as judges continue to abandon federal sentencing guidelines to minimize sentences they believe to be too punitive.  Sentences are “diverging, that’s for sure, and, to some extent, that reflects an absence of respect for the guidelines,” Gleeson says.

June 26, 2014 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 25, 2014

Notable SCOTUS consensus that Fourth Amendment requires a warrant for cell phone searches

The Supreme Court handed down this morning its last big criminal justice decisions of this Term with a near unanimous ruling in Riley v. California and US v. Wurie. The decision for the Court (available here) was authored by the Chief Justice, and here is how it begins and some of its essential parts:

These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested....

[A] balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.

But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones....

We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search....

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime.  Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals.  Privacy comes at a cost....

Modern cell phones are not just another technological convenience.  With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630.  The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.  Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

Regular readers will not be surprised to hear that there was one Justice who felt compelled to write a separate concurrence to express some misgivings about the majority's forceful pro-defendant ruling here. Usefully, both the Chief's opinion and the one concurring opinion likely provides lots of interesting discussion of Fourth Amendment interests and applications that should keep commentators buzzing and blogging (and tweeting) about modern privacy law for some time.

June 25, 2014 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

New Sentencing Project analysis details states' sluggish response to Miller

The Sentencing Project has released this notable new briefing paper reviewing state responses to the Supreme Court's Miller ruling that the Eighth Amendment prohibits mandatory juve LWOP sentencing schemes. The title and introduction to the paper highlights its themes:

Slow to Act: State Responses to 2012 Supreme court mandate on life without parole

Two years have passed since the Supreme Court, on June 25, 2012, ruled that juveniles cannot be automatically sentenced to life without a chance at parole, striking down laws in 28 states.  A majority of the states have not yet passed any statutory reform.  Of the states that have done so, many require decades-long minimum sentences and few have applied the changes retroactively.

Here are a few data snippets from the body of the paper:

Thirteen of the 28 states that previously required LWOP for juveniles convicted of homicide offenses have since passed laws to address their sentencing structures, while 15 have not....

Statutes passed since Miller set the minimum sentence for juveniles convicted of homicide offenses between 25 and 40 years.... In Nebraska and Texas, the minimum sentence for juveniles convicted of homicide is 40 years.  Pennsylvania, Louisiana and Florida have set the minimum sentence at 35 years.  Arkansas, Delaware, Michigan, North Carolina, Washington, and Wyoming will sentence juveniles to minimum terms ranging from 25 of 30 years....

Miller left unstated whether the estimated 2,000 people already mandatorily sentenced to life without parole for crimes committed as juveniles could be resentenced. Most of these juveniles are denied the opportunity to apply for a new sentence.  Of the 13 states that have passed legislation, only four -- Delaware, North Carolina, Washington, and Wyoming – allow for resentencing among the current JLWOP population....

State Supreme Courts in Illinois, Iowa, Massachusetts, Mississippi, Nebraska, and Texas have ruled that Miller applies retroactively; some people will attain a new sentencing hearing.  Supreme Courts in Louisiana, Minnesota, and Pennsylvania have ruled that Miller does not apply retroactively.  Cases pushing the question of retroactivity remain before Supreme Courts in Alabama, Colorado, Florida, and North Carolina; these and other states have not yet issued rulings.

June 25, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, June 24, 2014

Others starting to appreciate "Rand Paul, Criminal Justice Hero"

I am very pleased to see this new Slate commentary by Emily Bazelon headlined "Rand Paul, Criminal Justice Hero: The senator from Kentucky wants to give ex-felons the vote even though they won’t vote Republican." The piece not only highlights the credit Senator Paul should be given for his principled approach to criminal justice reform, it also demonstrates why right now he is arguably the most important active criminal justice reformer in the nation.  Here are excerpts:

When libertarian Republicans go on about the “tyranny” of the federal government, as Kentucky Sen. Rand Paul is prone to do, I tune out. But not today. Paul has been talking for a while about how his conception of tyranny extends to long, draconian prison sentences for mostly poor and black offenders. Now he is introducing a bill that would restore voting rights to nonviolent ex-felons in federal elections. This bill is not about to become law any time soon. But give Paul credit for standing on principle even though he and his party would hardly benefit.

If Congress really re-enfranchised ex-cons across the land, it would help Democrats. It would probably be enough to swing a close Senate race in some states—or to push Florida into the D column in a presidential election. In 2010, according to this policy brief by the Sentencing Project, 5.85 million people across the country couldn’t vote because they were either in prison or had a felony record (which in 12 states also disqualifies you at the polls)....

To state the obvious, if these ex-cons voted, they would break for Democrats. “African-American voters are wildly overrepresented in criminal justice populations. African-American voters also historically favor Democratic candidates,” says Christopher Uggen, a sociologist at the University of Minnesota. Uggen and Jeff Manza co-wrote an article for the American Sociological Review in 2002 in which they estimated turnout for disenfranchised ex-cons....

o why is Paul pushing for a bill that could actively hurt his party? “Even if Republicans don’t get more votes, we feel like we’ve done the right thing,” Paul told Politico. This sounds like Paul’s (qualified) support for immigration reform: He’s behind it even though in the short-term, it’s probably a loser for Republicans. I don’t mean to sound naive here about Paul’s motives. He sometimes cultivates renegade Tea Party independence, and I realize that he is also appealing to swing voters: moderates who like it when conservative politicians sound concerned about poor people and minorities. And maybe that’s good for the image of the Republican party overall: Rand Paul, softening agent. Uggen says he did a poll a few years ago and found resounding majority support for letting ex-felons vote. But how many of those people care enough about the issue to vote for Paul based on it? That number has to be tiny. And while it’s possible to argue that Republicans have to move toward immigration reform for their long-term survival, given the rising Latino population and the shrinking white one, felon disenfranchisement just doesn’t have the same grip....

It’s worth pointing out, though, that Paul is the sole sponsor for his bill. In Florida in 2011, Republican Gov. Rick Scott went the other way and tightened voting restrictions on former felons, in spite of criticism about the number of black people he was barring from the polls. Paul has more company from fellow libertarians Ted Cruz and Mike Lee in pushing for sentencing reform. This is the larger fight that felon disenfranchisement is a part of: addressing mass incarceration by lowering or eliminating mandatory minimum sentences, especially for nonviolent drug offenders. “I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said in February at a gala for the conservative American Principles Project. Give him, and Cruz and Lee, credit for being part of this push. Sentencing reform has justice on its side and budgetary common sense, too, given the huge sums it takes to keep prisoners locked up for years. Too bad other Republicans won’t support that cause, or go for giving former felons the vote either.

June 24, 2014 in Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, June 23, 2014

SCOTUS grants cert to resolve split over reach of statutory bank robbery aggravator

This morning the Supreme Court granted review in three new cases, one of which involves a federal criminal statutory mandatory minimum sentence for a kind of aggravated bank robbery.  Here is SCOTUSblog description of the new case on the SCOTUS docket:

Whitfield v. United States

Issue: Whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

June 23, 2014 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

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

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

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

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

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

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

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

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

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

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

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

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

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

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

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

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

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

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

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

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

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

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

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

Cross-posted at Marijuana Law, Policy and Reform

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

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