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December 7, 2004

Compelling reading from the drug war front

In July, US District Judge Gregory Presnell made a strong case for inclusion in my imaginary Sentencing Judges Hall of Fame through his opinion in US v. King, where Judge Presnell not only found the federal sentencing guidelines unconstitutional in light of Blakely, but also identified the illogic in the government's tortured severability claims (background here).  Judge Presnell followed up King with other noteworthy rulings in recent months (accessible here and here) that spotlight injustices in the current federal sentencing system.  And, last week, Judge Presnell in US v. Williams, No. 6:04-cr-69-Orl-31KRS (M.D. Fla. Nov. 30, 2004), once again detailed how ugly the "war on drugs" can appear on the judicial front lines.

Williams, a to-the-point, four-page opinion, can be downloaded below and it is a must-read for anyone concerned about mandatory drug sentencing or cooperation credit or the human realities of our criminal justice system.  Here are some highlights:

Torrey Williams was caught in a sting operation selling 12.3 grams of crack cocaine to an undercover law enforcement officer for a total of $500.00.... [T]he government seeks to impose a sentence of 188-235 months [for this] 24-year-old unemployed African-American male [who] has been convicted of two prior drug-related felonies both involving relatively minor amounts of crack cocaine.

Defendant has metastic medullary thyroid cancer [and his] prognosis is uncertain; however his doctor does note that this form of cancer portends a poorer prognosis than some of the other forms of thyroid cancer. [FOOTNOTE: recent publicity concerning our Chief Justice’s thyroid cancer [suggests] the three-year survival rate for this type of cancer is 20%.] Indeed, the cancer appears to have metastasized into his lungs [and] Defendant will require adjunctive therapy (radiation and chemotherapy) as well as possible additional surgery in the future.

As a result of this medical condition, Defendant moves for a downward departure... [which the law suggests] is appropriate in only "extraordinary circumstances." ... Therefore, the question becomes, is this an "extraordinary circumstance"?  Many people sentenced by this Court are incarcerated with physical or medical disabilities, and the Court has always been assured that the Bureau of Prisons will provide all reasonable and necessary medical care to its inmates. Indeed, it may well be that Defendant would receive better health care as a ward of the federal government than he would as a poor, uneducated and unemployed citizen of this state.

A guideline sentence in this case starkly illustrates the problem of attempting to fit the human experience into a discrete mathematical matrix.  It just can’t be done, and this Court cannot in good conscience do it, because it offends the Court’s concept of justice.... [Departing on th basis of extraordinary physical impairment and overstated criminal history] Defendant will, therefore, be sentenced to a term of 70 months incarceration....

In the meantime, the "war on drugs" goes on. Others will undoubtedly replace Torrey Williams in the chain of drug commerce, and the Courts will continue to incarcerate them for long periods at alarming rates.

Download presnell_williams_sentencing_memo.pdf

December 7, 2004 at 12:13 PM | Permalink


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» Career Offenders from TalkLeft: The Politics of Crime
by TChris Defendants who have two prior felony convictions for drug crimes or crimes of violence are typically sentenced as "career offenders" under the federal sentencing guidelines. The "career offender" designation usually results in something close... [Read More]

Tracked on Dec 7, 2004 2:09:19 PM

» Offending the concept of justice from Drug WarRant
Via TalkLeft: Florida's Judge Gregory Posnell refused to apply guidline sentences for a drug conviction that would have called for 188 months for a 24-year-old with thyroid cancer, based on drug stings involving $500. [Read More]

Tracked on Dec 7, 2004 6:53:06 PM


Footnote 7: "A sentence of 188 months would, in all likelihood, mean that Defendant will be imprisoned
for the rest of his natural life"

Footnote 5: "Based upon recent publicity concerning our Chief Justice’s thyroid cancer, the three-year
survival rate for this type of cancer is 20%."

"Defendant will, therefore, be sentenced to a term of 70 months incarceration."

Based on that prognosis, 70 months, 188 months, 1000 months doesn't really matter, it's all life. If the judge was going to depart for medical reasons, why not depart to something that gives at least a 50-50 shot of getting out?


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Gangs and prohibition

It seems everywhere you turn these days you are either hearing or reading about how the gang problem is plaguing America. Our law enforcement leaders, our religious leaders and our political leaders are all declaring how the problem of gangs and related crime are running rampant everywhere.

Ask our police chiefs, our sheriffs, top cops, our local DEA agents, our political leaders or our religious leaders why the gang problem is growing in this area. They will shrug their shoulders and tell you nobody has figured that out yet. They just know it’s a growing problem, and they don’t know what to do about it.

The truth is they don’t want to tell you the reason for the increase in gang activity. To do so would require them to acknowledge the dismal failure of a policy they’ve been supporting for over 30 years.

Gangs, gang activity, gang violence and gang recruiting of our youth is all a direct result of the 34 year old War Against Drugs. It’s the prohibition of certain drugs that fund and allow gangs to prosper. Our public officials know this, they know the gargantuan profits realized from the Black Market sales of a handful of prohibited substances, which are in great demand by the public, fund these gangs.

When I speak of profits I am not referring to a 50 percent markup or 100 percent markup on these substances. I am talking about seven hundred to ten thousand percent markup. It’s this stupendously huge profit margin that motivates individuals to risk arrest for the sale and distribution of these sybstances.

When law enforcement finally decides to take one of these dealers off the street another entrepreneurial individual has taken his or her place before the police car has left the neighborhood. Due to the outrageous profits the Black Market provides law enforcement faces a never-ending, never winnable battle.

We have been locking up non-violent drug offenders at an unprecedented rate, costing the American taxpayer an average of $25,000 per inmate per year. Last year over 755,000 arrests were made in the United States for marijuana alone. In 2004 marijuana arrests accounted for 86% of all drug arrests.

The United States is the largest jailer in the world. At the end of 2003 we taxpayers were footing the bill to keep over two million individuals locked behind bars. The United States has more people incarcerated for drug offenses alone than all the nations of the European Union, combined, have locked up for all crimes. The United States comprises five percent of the world’s population yet we incarcerate twenty five percent of all the worlds’ prisoners.
The majority of this inmate population is a direct result of the War Against Drugs. The prison building industry has been one of the fastest growing industries in America for the past ten years. Most states have built more prisons than institutions of higher education. Violent criminals are being released early to make room for non-violent drug offenders who are being sentenced under mandatory minimum sentencing guidelines.

Drug treatment costs between $3000 and $15,000 dollars per patient. Even if we sent all our drug offenders to the finest treatment centers in the world we taxpayers would save half the cost of incarceration. The United States is the only first world nation that treats individuals with drug problems as criminals rather than as patients.

As great a threat as gang violence presents there is a far more damaging byproduct of the prohibition of certain substances, easy access to these substances by our children. It is infinitely easier for a young person to purchase a myriad of illegal substances, many of which can kill them, than it is to purchase tobacco or alcohol. Tobacco and alcohol are regulated and controlled. To purchase these drugs a buyer must prove their age to the seller who would suffer legal penalties for illegal sales of these substances. Drug dealers are not bound by these same regulations.

Today illegal drugs are cheaper, purer and more available than ever before. Heroin costs less than a six pack of beer and is easier for children to obtain.

The only way to get illegal drugs away from our children is to get the drugs off the street and into a controlled and regulated environment.

In 1920, the national policy of Prohibition began. The 18th Amendment to the Constitution had been officially ratified: It sought, by law, to make the whole Nation into enforced teetotalers and to put an end to all evils associated with drinking.

Along with the inception of prohibition came the largest, most violent, wealthiest gangs ever known in America. Organized crime was born. The price of alcohol skyrocketed overnight, the supply of alcohol to the willing consumers barely slowed. The high prices brought huge profits which made the gang leaders very wealthy, wealthy enough to “buy” public officials, law enforcement personnel and judges. Gang wars to protect coveted areas or “turf’s” ensued. Today the gangs protect “the hood”. Wars broke out between rival gangs. Shootings on the streets of all the major American cities was common. Innocent bystanders died more often than the intended gang target.

Prohibition ended in 1933 after being widely viewed as a dismal failure causing more problems than it originally set out to correct.

"The prestige of government has undoubtedly been lowered considerably by the prohibition law. For nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced. It is an open secret that the dangerous increase of crime in this country is closely connected with this."
Albert Einstein, "My First Impression of the U.S.A.", 1921

Prohibition didn’t work then, it’s not working now, and it will never work because it is unenforceable. Prohibition isn’t the solution, it’s the problem.

Why is it then that despite all the evidence available our leaders choose to maintain a course that has shown no significant positive results and has demonstrated grievous damage to individuals and society as a whole? Money!

Sitting political leaders facing a reelection year have their law enforcement bureaus get tough on drugs. Raids with lots of arrests, all conveniently covered by the 6 and 11 o’clock news, make for great political propaganda.

Does this do anything to stem the flow or usage of drugs in the raided areas? Possibly, for 12 to 24 hours but after that the dealing in the raided area is most likely just as prevalent as prior to the raids. Drug dealers from areas surrounding the raided area know there is a demand for their products and move in to supply this need.

Law enforcement doesn’t want the war against drugs to be won or end. Most law enforcement organizations receive more funding from the federal war against drugs coffers and through seizures than they receive from their municipal or state budgeting. This independent funding has created many autonomous law enforcement agencies that need not answer to the administrative bodies they are supposedly serving.

Should prohibition end tomorrow most law enforcement organizations would need to downsize by at least ½ their staff.

Lawyers don’t want the drug war to end; the courts are log jammed with drug cases. Providing a lifetime of job security.

It is time to try something different, throwing more tax dollars into a failed system will never fix the system, it can only become a greater failure.

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