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July 13, 2005

A plug for drug courts in 8th Circuit's Booker mania

As noted in this post last week, I have long given up on keeping up with all the action in Eighth Circuit, which now seems to hand down at least a half-dozen sentencing decisions each day.  Today, with nearly 15 rulings on this official opinion page, the Eighth Circuit may have set a new one-day record. 

Though I continue to rely on readers to help me identify any major jurisprudential needles hidden in the Eighth Circuit Booker haystacks, an interesting concurrence from today's dispositions caught my eye.  In US v. Baccam, No. 03-2133 (8th Cir. July 13, 2005) (available here), an otherwise ordinary drug case gets a little twist when Judge Donald Lay added this concurrence to make a pitch for drug courts:

I concur in the judgment of the court.  I write separately to highlight the limited efficacy of an inflexible federal criminal justice policy that responds to the epidemic of drug crimes without adequately addressing the root cause of this epidemic — drug addiction.  Many states have created specialized drug courts that approach this epidemic with much greater success.  In most drug courts, nonviolent, substance-abusing offenders charged with drug-related crimes are channeled into judicially supervised substance abuse treatment, mandatory drugs testing, and other rehabilitative services in an effort to reduce recidivism.  Eligible offenders typically have the charges against them stayed and dropped if treatment is successful, or plead guilty with prosecution deferred and criminal punishment withheld if treatment is successful.  Evidence shows that the flexible and pro-active approach of drug courts reduces recidivism rates to less than half of the recidivism rate of those offenders who are simply imprisoned for their drug crimes.  Unfortunately, the federal criminal justice system offers no such alternatives for nonviolent, substance-abusing offenders.  Given the tremendous economic and human costs of imprisoning nonviolent drug offenders, Congress should seriously consider creating federal drug courts.  Federal drug courts would save a significant amount of money for taxpayers.

As detailed in this post, Judge Lay has previously called for the development of a federal drug courts program on the op-ed pages of the New York Times.  Now his insights will also appear in the august pages of F.3d.

July 13, 2005 at 11:35 AM | Permalink


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However distinguished Judge Lay may be, he has no business writing a meaningless concurrence that has nothing to do with the resolution of the case before him, and everything to do with an inappropriate effort by an Article III judge to use his official platform -- his written judicial opinions -- to lobby Congress for new legislation. Judge Lay has every right to express his personal opinions on the pages of the New York Times, but that is where they should stay. There was a great uproar when it was revealed that a member of Congress, Rep. James Sensenbrenner, had expressed his opinions regarding a recent drug sentence in a letter to the Chief Judge of the circuit. You would think that a similar outcry will be forthcoming about Judge Lay's attempts to interfere with his Article I counterparts, but I doubt it.

Posted by: mk30801 | Jul 13, 2005 1:34:26 PM

Judge Lay's comments are similar to those of Justice Thomas's dissent in Lawrence vs. Texas, in which he said that Texas's anti-sodomy law was silly, and if he were in the legislature he would vote to repeal it. Obviously Thomas's opinion of the policy was unnecessary to his legal conclusion; I suppose you could have called it a "meaningless" dissent.

My point is that such comments are fairly common in the opinions of both conservative and liberal judges.

Posted by: Marc Shepherd | Jul 13, 2005 3:25:24 PM

I'm a student at William Mitchell.
It may be routine for judges to offer opinions regarding existing laws which are failing and so be it. If judges are to interpret law, and the law has turned into ineffective jiberish, then the least the interpreters can do is tell those they are translating for (i.e., "the body public") that "the law isn't making much sense".
The lethargy shown by the legislature in understanding the concept of addiction and its inability to put in place laws which can help stem the havoc wreaked by addiction in our society seems to beckon justices to add clues for the legislative branch to find understanding. I applaud both conservative and liberal justices trying to provide these clues for our sleeping legislature.

Posted by: michael healey | Sep 16, 2005 3:31:05 PM

The "War on Drugs is Killing us Slowly"
I am just a citizen. A citizen with a loved one caught in the system, waiting for his trial. And If this wasn't happening to us and our familiy, I would never have believed the way the courts and the judicial system work.
I am writing this because I am hoping that someone who can make a difference will read this.
Those people, mostly young men, standing before a judge, jury, and prosecutor are human. I think that we tend to forget that they are real people - not county or federal numbers, not stats. Most are not violent people.
They are young men caught in the governments ego trip "War on Drugs" to say they are doing something to make us Citizens feel safe.
They, these young men on trial, are faced with one of the most horrible things that can ever happen to a person. Having your fate in the hands of someone who knows nothing about you. Their life hangs there in the balance - waiting for a yea or nay, on whether they can return to society or rot in a jail cell.
Yes punishment should be given - but these sentences are way to HARSH. 50 years, 70 years, 80 years, life for non-violent drug cases where the defendent chose to fight for their life in court instead of "cooperate" . But for "cooperating" (doing the job of the police and turning in other people) maybe they will get five or ten years.
From what I've been reading - child molesters get an average of seven years. Assault, Rape, - maybe 15 years.
Sadly, there will always, always, always be a way for people to get high, high, and higher!!!! It is human nature to seek extreme pleasure. Addictions will never cease. New Drugs will continue to emerge and so will new drug dealers.
These keepers of the law and dealers of "justice" are taking away the hope of entire communities. It's time to look at each case on an individual basis, and get rid of these horrible guidelines. it's time to go back to the table and think of another way. Maybe we should study & learn a lesson from the failure of Prohibition.
2.2 million in prison is not a good thing. Not a good thing at all.

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