Wednesday, April 17, 2013

Two big significant states perhaps on track join growing ranks legalizing medical marijuana

As I have hinted in prior posts, I think it could become a very big deal if (and when?) a majority of US states have formally legalized medical marijuana — especially if (and when?) a number of jurisdictions have also legalized recreational marijuana use and the majority of Americans become accustomed to seeing legitimate "pot shops" in their communities.  Consequently, these new stories today strike me as especially notable and significant:

If it is only a matter of time before there are state-legalized marijuana sales in Chicago, Manhattan and our Nation's capitol, then I think it will only really be a matter of a little more time before marijuana is legal (or at least decriminalized) in the entire country.

April 17, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

In divided ruling, SCOTUS embraces (fuzzy?) standard rather than per se rules for DUIs and blood tests

The Supreme Court this morning handed down a notable, and notably divided, Fourth Amendment ruling in Missouri v. McNeely, No. 11-1425 (S. Ct. April 17, 2013) (available here). This accounting of the votes and opinions highlights why it likely will not be easy to figure out right away just what McNeely really means:

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and II, in which SCALIA, GINSBURG,and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

I will leave it to Fourth Amendment gurus to tell me whether there is as much of interest in the substance of McNeely as there is in the voting blocks.  And speaking of substance, here is how the main opinion of Justice Sotomayor gets started:

In Schmerber v. California, 384 U. S. 757 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay neces­sary to obtain a warrant, under the circumstances, threat­ ened the destruction of evidence.”  Id., at 770 (internal quotation marks omitted).  The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant require­ment for nonconsensual blood testing in all drunk-driving cases.  We conclude that it does not, and we hold, con­sistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.

In the context of the Fourth Amendment (and many other criminal procedure contexts), I  typically see the embrace of multi-factor standards rather than bright-line rules to be better for defendants (and especially their lawyers) than for police and prosecutors.  In turn, the voting blocks here in McNeely reinforce my sense (1) that Justices Ginsburg, Kagan and Sotomayor are very often going to vote together in criminal procedure cases, and (2) that, at least in pre-trial procedure settings, Justice Scalia may often be a more consistent pro-defendant vote than either Justice Breyer or Justice Kennedy.

April 17, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Ending Mass Incarceration: Charting a New Justice Reinvestment"

Charting a New Justice ReinvestmentThe title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in the U.S."  The full 36-page report is available at this link, and this webpage provides an overview of the contents.  Here are some of the basics:

Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.

The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.

The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.

As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.

As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.

April 17, 2013 in Pot Prohibition Issues, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

This new Chicago Tribune article, headlined "For sentencing, Jacksons get new judge named Jackson," reports on some notable pre-sentencing developments in the run up to a high-profile federal sentencing scheduled for later this year. Here are the basics:

The felony cases of former Rep. Jesse Jackson Jr. and his wife, former Chicago Ald. Sandi Jackson, have been assigned to a new judge — named Jackson.

Court papers filed Tuesday moved the cases to U.S. District Judge Amy Berman Jackson, but did not explain why the judge who accepted the Jacksons' guilty pleas, Robert Wilkins, would not be the one to sentence them this summer.

Harvard law professor Charles Ogletree Jr., who recently joined Jesse Jackson Jr.'s legal team, told the Tribune that Wilkins is a former law student whom he knows well, and that Wilkins may have recused himself out of caution.

Ogletree said he joined Jackson Jr.'s team on a pro bono basis and will appear at his sentencing June 28. He said he was not involved in the defense of Sandi Jackson, who will be sentenced July 1.

Under sentencing guidelines, the former congressman faces 46 to 57 months in prison and Sandi Jackson one to two years. The pair pleaded guilty in separate cases in the U.S. District Court for the District of Columbia after Jackson Jr. looted his campaign treasury of more than $750,000 and Sandi Jackson failed to report on joint tax returns about $600,000 in income.

Ogletree, when asked what would be a fair sentence for Jackson Jr., would not say whether that involved prison time but argued that he deserved a "second chance." He said he thought any judge will look not only at the guidelines but at Jackson Jr.'s record of public and community service and work with seniors and young people.

Ogletree, a longtime acquaintance of the Rev. Jesse Jackson Sr., the civil rights leader, said the case was not about the father but about his son, who is "a young man in a very challenging situation who has a story that I hope people will be willing to listen to."

Judge Amy Berman Jackson was chosen for the Jacksons' case based on a random reassignment. She is not related to the couple — but she is a Harvard law alum like Wilkins and Ogletree.

Judge Jackson has familiarity with a convicted congressman: As a defense attorney before her appointment to the bench, she represented Rep. William Jefferson, D-La., who was convicted of corruption after authorities found $90,000 in cash in his freezer.

Recent related posts:

April 17, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 16, 2013

"Conservatives Push Marijuana Reform in Congress"

The title of this post is the headline of this notable new piece from Rolling Stone.  Here are excerpts:

There's a new congressional push to end the federal War on Pot in the states – and it's being spearheaded by some of the most conservative members of the Republican conference.

The "Respect State Marijuana Laws Act" introduced in the House last week would immunize anyone acting legally under state marijuana laws from federal prosecution under the Controlled Substances Act.  Depending on the state, the legislation would cover both medical marijuana and recreational pot, and would protect not only the users of state-legal cannabis, but also the businesses that cultivate, process, distribute and sell marijuana in these states....

The three GOP co-sponsors are:

Rep. Dana Rohrabacher of California, who is best known to liberals as a villainous climate denier for theorizing that global warming is the result of "dinosaur flatulence."

Rep. Don Young of Alaska, the mastermind of the infamous Bridge to Nowhere, who was most recently in the news for recalling the "wetbacks" his father employed on the family farm.

And Rep. Justin Amash of Michigan, who was recently "purged" from the Republican House Budget Committee – allegedly for being too conservative – and who has repeatedly voted against toughening penalties for human trafficking.

These hardcore Republicans are joined in a ganja Gang of Six by liberal pro-pot stalwarts Reps.  Jared Polis of Colorado, Earl Blumenauer of Oregon and Steve Cohen of Tennessee.

Speaking for the group, Republican Rep. Rohrabacher said the bipartisan bill "establishes federal government respect for all states' marijuana laws" by "keeping the federal government out of the business of criminalizing marijuana activities in states that don't want it to be criminal."

Steve Fox, national political director of the Marijuana Policy Project, hailed the effort to bend federal marijuana law to the will of the governed.  "Marijuana prohibition is on its last legs because most Americans no longer support it," said Fox, adding that the new legislation offers the states'-rights crowd in the House with a chance to vote their principles:  "This legislation presents a perfect opportunity for members to embrace the notion that states should be able to devise systems for regulating marijuana without their citizens having to worry about breaking federal law."

A few recent and older related posts: 

April 16, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Prez Obama makes three great new nominations to the US Sentencing Commission

I am very pleased and excited to have learned that late yesterday the White House officially announced three great new nomination to fill the three now-empty spots on the US Sentencing Commission.  A colleague forwarded me a copy of the official press releases with the appointments, but I cannot yet find it linked on-line.  Ergo, I will rely on this local press report from the Montgomery Advertiser, headlined "Obama nominates Bill Pryor for sentencing commission," for the basics:

President Barack Obama nominated former Alabama attorney general and current U.S. circuit judge Bill Pryor to be a commissioner on the U.S. Sentencing Commission, the White House announced Monday evening.

Pryor, who served as attorney general from 1997 to 2004, serves on the U.S. Court of Appeals for the 11th Circuit. President George W. Bush appointed Pryor to the federal bench in 2004....

Pryor would serve a term that expires Oct. 31, 2017, and would replace commissioner William B. Carr, whose term has expired.

Obama also intends to nominate Rachel Elise Barkow, the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, and U.S. District Judge Charles Breyer of the Northern District of California to the sentencing commission, according to the White House.

I am familiar with and greatly respect the sentencing work of all three of these folks, and I cannot readily think of many persons whom I would be more excited to see joining the U.S. Sentencing Commission. I hope they are all swiftly confirmed and can get right to work on all the area of federal sentencing reform now in urgent need to attention and action.

UPDATE:  The official press release about these nomination are now available at this link.

April 16, 2013 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (16) | TrackBack

"Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process"

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

Federal clemency is in crisis. In response to that crisis, a remarkable bipartisan consensus has formed in support of systemic reform.  This short statement acknowledges that consensus, and lays out a framework for change.  The reforms described here are achievable without significant congressional action, consistent with best practices in the states, and cost-effective.  We urge that this administration take the clemency process out of the Department of Justice, create an independent and bipartisan Clemency Board that would report directly to the President, and establish a regular and systemic process for executive consideration of individual cases.

April 16, 2013 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 15, 2013

What should happen after improper federal judicial participation in plea negotiations?

The question in the title of this post is the question being considered by the Supreme Court during oral argument today in US v. Davila. I have not given Davila too much attention until now, in part because I think I would prefer a world with a lot more regulation and judicial involvement in plea negotiation. Moreover, as this SCOTUSblog preview by Rory Little suggests, there may be a host of reasons it makes sense for me to be rooting about the federal criminal defendant in this matter. Here is how Rory's effectivepreview starts:

With apologies to fifty-seven of my fellow “Criminal Law and Procedure Professors” who have filed an amicus brief in support of respondent Anthony Davila in United States v. Davila (set for argument on Monday April 15 -- can that really be a coincidence for a felony tax offender?), this looks like a simple case.  “Deceptively simple,” Davila’s lawyer Josh Rosenkranz might respond -- his brief does a good job of making one pause at the implications of the underlying facts.  But the Question on which the Court granted -- whether “any degree of judicial participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1) automatically requires” reversal (my emphasis) -- really does not require examination of these implications.  In recent years, the Court has firmly rejected endorsing “automatic reversal” rules, let alone ones based on procedural rules rather than the Constitution, rules that many states do not follow.   Expect Monday’s argument to be respectful but one-sided on the Question Presented, with the more defendant-friendly Justices perhaps focused on how best to limit a reversal so as to not endorse the disturbing implications that Davila (and his law professor amici) admirably present.

I expect the oral argument transcript in Davila will be available later this afternoon, and I will post it here when it is.

UPDATE:  The transcript in United States v. Davila is now available at this link.

April 15, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Second Circuit finds Cameron Douglas's above-guideline sentence substantively reasonable

The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.

As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities at his federal sentencings and in part because of the many legal and social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son was given at his first sentencing and the seemingly harsh sentence he got the second time around (some backstory here).  The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on.  I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.

At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:

Finally, we take note of the argument, made by Douglas and supported by amici, that punitive sanctions are a less appropriate response to criminal acts by persons suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011).  But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.

We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences.  Indeed, that is precisely how the district court approached Douglas’s original sentence in this case.  Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency.  District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.”  We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.

And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

Prior posts concerning Cameron Douglas's federal sentencings:

April 15, 2013 in Booker in the Circuits, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Interesting coverage of media coverage of crime and prison punishments

Marchapril2013cover_300x400Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories.  I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility." 

As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States.  Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."

With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:

April 15, 2013 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Is there any sound scientific reason for the dearth of marijuana research funding?

The question in the title of this post is prompted by this lengthy and informative new Bloomberg article, which is headlined "Marijuana Research Funding Cut as Support for Drug Grows."  Here are excerpts:

As more states embrace legalized marijuana, the drug’s growing medicinal use has highlighted a disturbing fact for doctors: scant research exists to support marijuana’s health benefits.

Smoked, eaten or brewed as a tea, marijuana has been used as a medication for centuries, including in the U.S., where Eli Lilly & Co. (LLY) sold it until 1915.  The drug was declared illegal in 1937, though its long history has provided ample anecdotal evidence of the plant’s potential medicinal use.  Still, modern scientific studies are lacking.

Subsequent research suggests marijuana may help stimulate appetite in chemotherapy and AIDS patients, help improve muscle spasms in multiple sclerosis patients, mitigate nerve pain in patients with HIV-related nerve damage and reduce depression and anxiety.

What’s more, the federal government is scaling back its research funding. U.S. spending has dropped 31 percent since 2007 when it peaked at $131 million, according to a National Institutes of Health research database.  Last year, 235 projects received $91 million of public funds, according to NIH data.

That’s left the medical community in a bind: current literature on the effects of medical cannabis is contradictory at best, providing little guidance for prescribing doctors.  “What’s happening in the states is not related to science at all,” said Beau Kilmer, co-director of RAND Corp.’s drug policy research center. Kilmer is also part of a group selected to advise the state of Washington on its legalization effort. “It’s difficult to get good information,” he said.

Two states, Washington and Colorado, have fully legalized the drug, 18 states allow its use for medical reasons and 17, including New York, have legislation pending to legalize it.

Donald Vereen, a former adviser to the last three directors of the National Institute on Drug Abuse, says that most doctors’ and policy makers’ knowledge on the subject stems from a 1999 report from the Institute of Medicine, an independent nonprofit that serves to provide information about health science for the government.  The group summed up its findings saying cannabis appeared to have benefits, though the drug’s role was unclear.

The IOM report recommended clinical trials of cannabinoid drugs for anxiety reduction, appetite stimulation, nausea reduction and pain relief. It also found that the brain develops tolerance to marijuana though the withdrawal symptoms are “mild compared to opiates and benzodiazapines.”... Vereen, for one, says marijuana’s effects on pain without the withdrawal symptoms associated with other medications are deserving of further study to develop better pain drugs.

Subsequent research suggests marijuana may help stimulate appetite in chemotherapy and AIDS patients, help improve muscle spasms in multiple sclerosis patients, mitigate nerve pain in those with HIV-related nerve damage and reduce depression and anxiety. It’s even been suggested that an active ingredient, THC, may prevent plaques in the brain associated with Alzheimer’s, according to a 2006 study by the Scripps Research Institute.

Still, fewer than 20 randomized controlled trials, the gold standard for clinical research, involving only about 300 patients have been conducted on smoked marijuana over the last 35 years, according to the American Medical Association, the U.S.’s largest doctor group....

Until more laws change, it will be difficult to study an illegal substance with the goal of turning it into a medication, researchers say. And since it’s illegal to grow, marijuana isn’t subjected to the rigorous quality control most medicines are, raising concerns patients may be at risk from contaminants, said Vereen.

Marijuana advocates point out inherent obstacles to conducting research: the National Institute on Drug Abuse controls all the cannabis used in approved trials, but the agency’s mandate is to study abuse of drugs, not health benefits. FDA Dilemma This creates dilemmas. The Food and Drug Administration, for instance, has approved a clinical trial studying whether marijuana can relieve symptoms of post-traumatic stress disorder. The trial, however, which is in the second of three stages of clinical testing, is blocked. NIDA, which controls the legal testing supply of the drug grown at a University of Mississippi farm, has refused to supply the researchers with marijuana.

“NIDA is under a mandate from Congress to find problems with marijuana,” said Bob Melamede, CEO of Cannabis Science Inc. (CBIS), a Colorado Springs, Colorado-based company that develops medicines derived from marijuana. “If you want to run a study to show it cures cancer, they will not provide you with marijuana,” he said. “What you cannot do are the clinical studies that are necessary.”

Attempts to expand licensed facilities beyond the University of Mississippi farm, have been denied, including a petition from University of Massachusetts agronomist Lyle Craker. The Drug Enforcement Administration denied that request in 2011, reversing a 2007 recommendation from its own administrative law judge, Mary Ellen Bittner.

NIDA also administered the most projects from 2003 to 2012, overseeing $713 million split among 1,837 research efforts. The bulk of the funding in the past decade was devoted to evaluating marijuana’s risks, potential negative impacts on the brain and developing prevention and treatment strategies, according to NIDA.

“There’s been a significant amount of study, but not clinical research,” said Brad Burge, a spokesman for the Multidisciplinary Association for Psychedelic Studies, a non-profit research and advocacy group. What’s lacking, says Burge, is “research intended to move marijuana, the plant, through the path to prescription approval by the FDA.”

For now, the research that does exist is often contradictory. A survey of 4,400 people found that those who consumed marijuana daily or at least once a week reported less depressed mood than non-users, according to a 2005 report in the journal Addictive Behaviors. A 2010, however, study in the American Journal of Drug and Alcohol Abuse of 14,000 found that anxiety and mood disorders were more common in those who smoked almost every day or daily....

Doctors’ attitudes are also shifting in favor of easing marijuana restrictions. The American Medical Association, the nation’s biggest doctor organization has called for a review of marijuana’s Schedule I status, a designation that declares it has no accepted medical use.

The American College of Physicians, the second-largest U.S. doctor organization with 133,000 members, also wants criminal penalties waived for doctors who prescribe marijuana and patients who smoke it. The drug could be useful to treat multiple sclerosis, nausea and pain, based on preliminary studies and pre-clinical lab work, the group said in a 2008 position paper calling for more research.

April 15, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, April 14, 2013

Weekend crime and punishment headlines from California

California has a large enough population to be a large nation all its own, and some crime and punishment stories that swirl around the state these days reveals just some of the ways that the Golden State is truly a unique jurisdiction.  Here are just some of the headline from the state which caught my eye this weekend:

April 14, 2013 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, April 13, 2013

"Hurricane Sandy has been good for the Gambino crime family"

The title of this post is the amusing first sentence of this New York Daily News article discussing the latest way-below-guideline federal sentencing outcome for extortion crimes in and around New York.  Here are the factual basics:

Reputed soldier Vincent Dragonetti is the third mobster convicted of extortion to be sentenced to perform community service for victims of last year’s weather disaster instead of jail time.

Federal Judge Dora Irizarry could have sent Dragonetti away for up to 51 months for his extortion of Brooklyn developer Sitt Asset Management, but he gave him 200 hours of service instead.

Irizarry previously sentenced Gambino associates Emmanuel Garofalo and Thomas Frangiapane to Sandy-related relief.

I am not eager to question the sentencing wisdom of Judge Irizarry or any other federal judge who concludes that the goals of sentencing set out by Congress in 3553(a) are better served by community service than by prison time.  That said, I hope that there will be proper monitoring of these community service sentences so that Sandy victims really do directly benefit from the alternative sentences given to these high-profile federal criminals.

April 13, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 12, 2013

A few minutes of ganja gold social commentary from The Colbert Report

I have already seen lots of interesting social commentary about the modern marijuana reform movement, but the recent segment by Steven Colbert (embedded below) makes for especially amusing viewing on a Friday afternoon.  Enjoy:

Notably, this amusing new segment may soon seem dated, as this AP article details that Maryland appears to be on the verge of becoming the 19th state to legalize medical marijuana.  In addition to being intrigued by state developments in this realm, I think it may be only a matter of time before so many states have legalized medical marijuana that the feds may have to confront new constitutional arguments problems when trying to aggressively prosecute and severely sentence responsible persons who are involved in state-approved medical marijuana businesses.

A few recent and older related posts: 

April 12, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (8) | TrackBack

Terrific SCOTUSblog preview of Kebodeaux and SORNA

A helpful reader reminded me not only that the Supreme Court has a last few criminal justice cases slated for oral argument the next few weeks as its term winds down, but also that one sex offender case, US v. Kebodeaux, due to be argued next week raises a host of intricate legal issue. Helpfully, Steven Schwinn sorts through Kebodeaux via this terrific (and very lengthy) post at SCOTUSblog  titled "Argument preview: Can Congress punish a former sex offender for failure to register?".  Here are highlights from the analysis section of the preview:
This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here)....

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.

April 12, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 11, 2013

Former NFL player now a high-profile felon facing (severe?) federal sentencing realities

As reported in this ESPN piece, headlined "Sam Hurd pleads guilty," I now have a new high-profile (and potentially high) federal defendant to watch as his sentencing approaches.   Here are just some of the interesting details:

Former NFL wide receiver Sam Hurd pleaded guilty Thursday to trying to buy cocaine and marijuana to set up a drug-distribution network, a move that leaves him facing significant prison time.

Hurd, 27, pleaded guilty in federal court in Dallas to one count of possession of cocaine and marijuana with intent to distribute. His trial was scheduled to begin Monday, and a federal judge had refused his attorney's request to delay it.

Prosecutors and Hurd's attorneys have been in plea discussions for months, according to one of his attorneys, Jay Ethington. One sticking point was what allegations Hurd would acknowledge in a plea agreement, which will factor into his recommended sentence on the indictment, Ethington said in September.

Ethington told The Chicago Tribune that he plans to "vigorously contest" Hurd's sentencing, contending that the former receiver didn't engage in drug trafficking to the extent alleged by prosecutors. "He's a marijuana freak," Ethington told the newspaper. "He loves marijuana. He's addicted to high-grade marijuana."

Ethington said Hurd was not a marijuana dealer. "Sell? No. Share with his friends? Yes," Ethington told the newspaper.

Hurd was a player for the Chicago Bears when was arrested in December 2011 outside a Chicago-area steakhouse after accepting a kilogram of cocaine from an undercover officer, according to documents prosecutors filed in the case.  Prosecutors alleged he told the officer and an informant at the steakhouse that he wanted to purchase up to 10 kilograms of cocaine a week for $25,000 per kilogram.

His arrest shocked his teammates and led to his release from the team. Months later, he was back in court after failing two drug tests and allegedly trying to arrange another drug buy.  Two men linked to Hurd's alleged attempts to buy drugs have pleaded guilty and were prepared to testify against him.

April 11, 2013 in Celebrity sentencings, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

"How to Awaken the Pardon Power"

The title of this post is the headline of this notable new commentary by Mark Osler now up at The Huffington Post.  Here is how it starts and ends:

In recent months, a striking array of people -- from the Kardashians to those within the Heritage Foundation -- have called attention to the often-forgotten ability of the president to shorten sentences and pardon convictions. It's no wonder: There is a crisis of over-incarceration in this country, and the pardon power is an obvious way to address it.

Inaction has exacerbated the problem, as the federal pardon power has nearly faded away. President Obama's recent grant of 17 pardons in minor, old cases does little to refute this. Even after these pardons, this president remains the stingiest user of executive clemency in recent history. In addition to a handful of pardons through the course of his presidency, President Obama has granted only a single commutation petition (which merely reduces a sentence), while denying over 3,000. Meanwhile, over 5,000 federal prisoners continue to serve sentences under an old mandatory minimum sentencing statute for crack cocaine sentences that has been reformed but not made retroactive.

No one seems happy with this abandonment of an important Constitutional power. Reports critical of Obama's performance have recently been issued by experts at both the conservative Heritage Foundation and the liberal American Constitution Society, and Supreme Court Justice Anthony Kennedy has condemned the dissolution of the pardon power both while on and off the bench. Such rare consensus among the right, the left, and the middle must mean that something is very wrong.

The process for considering clemency petitions is a part of the problem, according to the critics. The United States Pardon Attorney and his small staff are a part of the Department of Justice, and several levels of review stand between that office and the president. Those tasked with evaluating the apportionment of mercy are embedded deep within the agency charged with prosecution. The stingy results are predictable.

Three simple steps would cure this systemic problem. First, the consideration of clemency needs to be taken out of the Department of Justice. Second, clemency petitions should be evaluated by a diverse, bi-partisan board rather than a single official. Finally, clemency considerations should be routinized, with that board presenting its recommendations to the president at regular intervals....

The president of the United States is a Constitutional scholar, and it is the Constitution itself which creates the odd but important pardon power of the executive. It is nothing less than a charge to do justice while embracing mercy, a job made possible by the humble acknowledgment that our laws at times are not perfectly fit to the changing shapes of human frailties. We can only hope that the president possesses the strength to embrace that humility.

April 11, 2013 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

How should we understand and react to a small uptick in San Diego's crime rate?

330317_1n11crime_1_t940The question in the title of this post is my reaction to this local article which carries the (problematic?  incomplete?) big and bold headline "County crime increased in 2012."  Here are the basics of the (important? problematic? fascinating?) local California crime story:

The decades-long trend of declining crime across San Diego County took a turn last year, when reported incidents increased by 7 percent.  Regional law enforcement officials say they are concerned, but not certain if there is cause for alarm.

“Nobody in law enforcement likes it when the crime rate goes up,” Sheriff Bill Gore said Wednesday, adding that it is cause for concern.  “Crime rates have been going down for 30 years. We didn’t think crime would go to zero.”

The 2012 numbers were released Wednesday by the San Diego Association of Governments, which each year tallies the seven major crimes tracked by the FBI: homicide, rape, robbery, aggravated assault, burglary, larceny and motor theft.

The countywide figures, in rounded numbers, show that reported crimes rose from 76,000 in 2011 to 81,000 in 2012, a 7 percent increase. Violent crimes rose 7 percent, property crimes rose 6 percent.

Crime rose by 7 percent within the city of San Diego, which had 35,000 crimes in 2011 compared to 37,000 in 2012.  Incorporated cities and unincorporated county areas served by the Sheriff’s Department saw an 8 percent increase in crime, from about 16,000 to 17,000.

The local numbers seem to echo, and exceed, a national upward trend in crime figures. “Nationally, for the first six months of 2012, we saw a less than 2 percent increase in the numbers — a slight uptick,” said James Austin, president of nonprofit JFA Institute, a Washington D.C.-based criminal justice research and consulting firm.  “By region, most of that increase is produced in the Northeast and the Western region, and San Diego is part of the Western region. So that is consistent.”

With the 2012 increase in crimes, authorities around San Diego County have asked themselves “Why?” and looked for ways to slam on the brakes.  Some are ready to place at least some of the blame on the state’s public safety realignment law, also known as AB 109. “It’s too early to say,” said Cynthia Burke, director of SANDAG’s criminal justice research division. “It’s something law enforcement is tracking.”...

San Diego police Chief Bill Lansdowne pointed out that in 2011, the city had its lowest crime rate in 42 years. Then came last year’s spike.  There were more homicides, rapes, assaults, home burglaries, larcenies and car thefts.  The only crime category to drop was nonresidential burglaries.

“I believe AB 109 is starting to have an effect on our crime,” Lansdowne said.  He said lower numbers of police officers, because of budget cuts, were also a likely factor.  Gore, too, said financial constraints and staff reductions have had their effect, and he hopes to fill 250 empty deputy positions by mid-2014.

In recent months, Lansdowne said, the department has focused crime-fighting efforts on areas seeing the greatest increases. One result, he said, is that homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent.

He also is hiring more officers, and looking forward to San Diego’s share of a $1.6 million state grant to county law agencies to address AB 109 issues.  Within the county last year, Ramona saw the largest increase in crime — 28 percent — with 546 crimes reported in 2011 and 699 in 2012.  Most of the crime was burglary and theft, said Lt. James Bovet, in charge of the town’s sheriff’s station....

Bovet said he was watching closely last year as the mountain community’s crime figures edged up. “Our overall crime rate is low, but this increase was so dramatic, we had to take some quick steps,” he said. “We analyzed our crime problems and prioritized out staff with more deputies per shift. I tasked my deputies here to pretty much talk weekly to a probationer. We do more to keep track of our known criminals and parolees.”

Bovet said deputies also broke up two burglary rings late last year, making several arrests. “I can tell you, this year, we’ve seen significant decreases in crime,” Bovet said. “We’ll keep monitoring it and do what we can do.”

Assuming the data reported here (both in the text and in the chart) is accurate, the real question/story here for sentencing fans is how should we come to understand this data and react thereto.  For folks who do not like the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is real easy to claim that this crime increase is the fault of activist judges and Governor Jerry Brown.  But for folks who want to defend the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is also real easy to claim that local authorities failed to plan properly for realignment and/or that modern budget cuts and limited funding for police and realted social services is the primary reason crime ticked up.

Perhaps more importantly, perhaps the right "story" and reaction thereto is celebration of government improvements, not finger-pointing and government blame.  As the chart above reveals, crime rates in San Diego, even after the SCOTUS Plata ruling and the realignment plan, remain a historically low level.  And it seems that an small uptick in crime led to local police department reviewing closely whether and how they could do more effectivel crime-fighting for less money.  And, at least according to the "cops on the beat," it now appears that despite realignment AND budget cuts, now  in some areas "homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent."

In other words, despite the short-hand bad-news headline of "County crime increased in 2012," the real story is much more mixed, and a lot of different stories can be told about whether and why the local crime glass is half-full or half-empty.  Unfortunately, while I have the time and energy to think this all through and am inclined to spin this story in a positive way, I suspect the average voter and average politician instead only has time to see the headline and to (over)react to what seems like very bad news concerning both crime and punishment in California.

Some related posts on the great crime decline and modern crime rates: 

April 11, 2013 in Detailed sentencing data, National and State Crime Data, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, April 10, 2013

New Brennan Center report on Gideon and indigent defense

Via e-mail, I received news of this new report on the right to counsel titled "Gideon at 50: Three Reforms to Revive the Right to Counsel."  Here is how the e-mail described its context and contents:

The Brennan Center for Justice at New York University School of Law releases a new report examining the numerous challenges public defenders face in providing legal representation to poor clients.  Fifty years after the U.S. Supreme Court recognized the constitutional right to an attorney for criminal defendants in Gideon v. Wainwright, many public defenders are so underfunded and overworked that clients are not getting the legal defense they were guaranteed, further feeding our nation’s mass incarceration problem.  In this report, Thomas Giovanni and Roopal Patel identify impediments to effective counsel and propose three common sense reforms.

“The underfunding of legal defense for poor people increases the risk that innocent people will be convicted,” said Giovanni.  “The overcriminalization of petty, non-violent activity diverts scarce resources from real public safety priorities.  Until legislators commit the necessary resources to public defenders and rethink the classification of low-level offenses, the cycle of mass incarceration will continue at great societal, political, and fiscal costs.”

April 10, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

"The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."

The title of this post is drawn from this early report via Jennifer Rubin of the Washington Post concerning Senator Rand Paul's notable policy speech today at Howard University. Here is some context and more content from Rubin's strong first-cut analysis of Senator Rand's efforts (with one particular line emphasized by me):

Sen. Rand Paul (R-Ky.) delivered an important and intriguing speech at Howard University as part of his determined effort to expand the reach of the GOP and take his message everywhere.

His remarks, as prepared for delivery, highlighted the best and the worst aspects of his thinking, and they left some question marks....

The most interesting part of the speech was his widely anticipated defense of drug law reform.  “I am working with Democratic senators to make sure that kids who make bad decisions, such as non-violent possession of drugs, are not imprisoned for lengthy sentences.  I am working to make sure that first-time offenders are put into counseling and not imprisoned with hardened criminals.  We should not take away anyone’s future over one mistake.”  He described two young men, one white and privileged and the other mixed race and modest in income, who could have had their lives ruined by a drug arrest. He concluded with a kicker: “Instead, they both went on to become presidents of the United States. But for the grace of God, it could have turned out much differently.”

He then explained his opposition to mandatory minimum sentences:

"Our federal mandatory minimum sentences are simply heavy-handed and arbitrary. They can affect anyone at any time, though they disproportionately affect those without the means to fight them.  We should stand and loudly proclaim enough is enough. We should not have laws that ruin the lives of young men and women who have committed no violence.  That’s why I have introduced a bill to repeal federal mandatory minimum sentences.  We should not have drug laws or a court system that disproportionately punishes the black community."...

It was a nervy effort on his part, and a sincere one, I think, to explain his views to an audience not enamored of his party or philosophy. He should do more of it, and in more concrete terms, to persuade and explain how his philosophy works and why liberalism doesn’t.

He is a force to be reckoned with; liberals and conservatives ignore him at their own risk. If nothing else, he demonstrated that a forceful reiteration of history can illuminate the Republican Party and that conservatism deserves a fair hearing. That’s more than 90 percent of Republicans have done.

Regular readers (and certainly my dad and close friends) know that my political commitments lean toward the libertarian, and thus I was inclined to be a fan of Senator Rand Paul from the get-go. More broadly, as regular readers and others surely know, I strongly believe our modern federal criminal justice system ought not be so committed to costly big national government one-size-fits-all solutions for what seem, at least to me, to often be local small community diverse problems. Thus, I am especially excited that Senator Paul is apparently committed to bringing his libertarian perspective to the arena of federal criminal justice reform.

But the single sentence I have highlighted above reflect a different theme and one that strikes a different chord with my own philosophical commitments. Saying that "We should not take away anyone’s future over one mistake," reflects not a unique political philosophy but rather suggests a kind of personal moral philosophy grounded in a deep commitment to (1) recognizing the reality of human fallibility, and (2) embracing the potential for human improvement and achievement even after a human mistake is made.

Of course, if one really accepts this kind of deep moral commitment and wants criminal laws to reflect this commitment, there are a whole lot of important sentencing implications beyond reform of federal drugs and mandatory minimum sentencing terms. Such a personal moral philosophy, at least in my view, would necessarily call for eliminating the death penalty and LWOP for any and all first offenders, and it might even call for eliminating any imprisonment any and all first offenders. But I do not want to, at least right now, start setting out a script for just how Senator Rand Paul should seek to operationalize his political and personal philosophies. For now I just want to (a) celebrate the fact that he is really starting to talk the talk on long-needed federal criminal justice reforms, and (b) continue to get excited about how he will be soon walking the walk on long-needed federal criminal justice reforms.

Some recent and older related posts:

April 10, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack