Judge Lay advocating drug courts again

As detailed in this post, last month Judge Donald Lay of the Eighth Circuit, in an otherwise ordinary drug case, added a concurrence to advocate for the development of federal drug courts.  Today, Judge Lay concurs in US v. Ellefson, No. 04-1293 (8th Cir. Aug 23, 2005) (available here) to pitch for drug courts again.  Here are snippets:

Ann Ellefson was addicted to drugs.  During her addiction, she allowed her boyfriend to use her apartment as a storage and distribution center for his business in illegal narcotics.  The evidence showed that she was aware of his activities, accompanied him on a delivery of illegal materials, and independently offered to aid him in carrying out his business.  Under these circumstances, the jury reasonably found her guilty of aiding and abetting the sale of illegal narcotics. Yet I wonder the extent to which her drug addiction contributed to her crimes and I find myself doubting whether the interests of society — let alone those of Ellefson — are served by her 188-month sentence (almost sixteen years in prison).  To the extent that her addiction caused her actions, a sentence addressing her underlying addiction would better serve the interests of society.

Unfortunately, our inflexible federal criminal justice policy responds to the epidemic of drug crimes without adequately providing federal judges with the ability to address drug addiction — the root cause of this epidemic. In contrast, many states have created specialized drug courts that approach this epidemic with much greater success.... 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.

Though I laud Judge Lay's continued advocacy for drug courts (which, as detailed in this post, has reached the op-ed pages of the New York Times), I wonder if he might operationalize his concerns more effectively in a post-Booker world. 

In effect, Judge Lay is suggesting that 15+ years imprisonment for Ann Ellefson is "greater than necessary" to serve the purposes of punishment set forth in 3553(a).  Rather than simply concur in the affirmance of Ellefson's sentence, perhaps Judge Lay should dissent on the ground that, in light of the mandates of 3553(a), Ellefson's sentence is unreasonable.  Of course, without another judge's vote, such a dissent would not have any impact in the case at hand.  But such a dissent might help break the post-Booker appellate sopor in which circuits are repeatedly suggesting through word and deed that the federal guidelines' long sentencing terms are always reasonable.