Wednesday, March 03, 2021

"Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions"

The title of this post is the title of this notable new article authored by Michael Sousa ow available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.

March 3, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Friday, February 26, 2021

Split Washington Supreme Court rules state’s strict liability felony drug possession law violates due process

The Washington Supreme Court issued an interesting split decision yesterday concerning the state's drug possession law.  Here is how the majority opinion in Washington v. Blake, No. 96873-0 (Wash. Feb. 25, 2021) (available here), gets started and a few key passages:

Washington’s strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.  This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power?  The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power....

The question before us today is whether unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize.  Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.

To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct.  States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated.  The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes.

But the possession statute at issue here does far more than regulate drugs.  It is unique in the nation in criminalizing entirely innocent, unknowing possession.

February 26, 2021 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, February 25, 2021

"What If We Pay People to Stop Using Drugs?"

The question in the title of this post is the headline of this New Republic piece by Zachary Siegel.  Its subheadline captures its themes: "Traditional treatments often take place in expensive facilities, demand total abstinence, and rely on punitive methods of control.  A harm reduction model turns all of that on its head."  Here is an excerpt (with links from the original):

In contingency management programs, a positive urine screen does not result in punishment the way it might in other treatment programs, especially when those are court mandated and using drugs can result in jail time.  The only negative reinforcement in contingency management is that a positive urine screen means the reward cycle resets, along with the bonus count.  You have to start over. 

“People can come high,” Mike Discepola, vice president of behavioral and substance use health at the San Francisco AIDS Foundation, said.  The whole idea of the program is to match a participant’s interest with their ability, Discepola explained.  If someone is continually testing positive for stimulants, then treatment, counseling, and care are still available to them.  If a participant tests positive, they’re encouraged to discuss why they used, and counselors try to motivate them to keep showing up and try again.  No one gets turned away, and no one gets punished for using again.

But that’s exactly what conventional treatment, and the legal system, does.  People who use drugs are often given an ultimatum to either comply with an abstinence-focused treatment program or go to jail.  In Pennsylvania, one type of probation called “addict supervision” runs on a strict zero-tolerance approach where if participants test positive for drugs, or even miss a drug test, they’re detained and potentially given an even harsher sentence than the one they are hoping to avoid by agreeing to supervision in the first place.  All this, mind you, for low-level drug arrests and minor offenses.  Federal data from 2012 shows that 44 percent of men aged 19 to 49 who are on probation or parole could benefit from addiction treatment, but just over one-quarter actually get it.  Even when they do, it’s hard to know if that treatment is truly grounded in compassionate health care or just punishment by another name....

Providing financial incentives is a common practice in health care and most of our regular lives.  Employers offer their workers gym memberships and Fitbits to encourage certain behavior.  If you’ve ever used points earned on a credit card or accumulated miles from traveling, that’s an incentive, too....

Prevailing stigmas and stereotypes label people who use drugs as selfish, irresponsible, and criminal.  Why pay them money? Aren’t they just going to buy more drugs?  Attitudes against “coddling” people who use drugs are often deployed to prevent effective harm reduction interventions from being implemented.  Rod Rosenstein, Trump’s former deputy attorney general, argued against supervised consumption sites in The New York Times, saying the goal was to “fight drug abuse, not subsidize it.”  

February 25, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

"Merrick Garland, cannabis policy, and restorative justice"

The title of this post is the title of this notable new commentary from John Hudak over at Brookings FixGov blog.  I recommend the piece in full, and here are excerpts:

Judge Garland recognized two realities about cannabis enforcement — one not new to AG nominees, the other quite new.  First, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources.  There are plenty of other crimes that the Justice Department should be focused on.  Second, he noted that cannabis law enforcement disproportionately impacts communities of color, and more importantly, that the effects of those arrests impact individuals’ economic potential and livelihoods.

The latter is a stark departure for top-level presidential appointees.  Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one.  Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system.  It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty....

Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders.  By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.

The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities.  The attorney general can work with groups to improve the manner in which law enforcement and state and local leadership address both the way in which cannabis enforcement operates in the future and how to make up for past harms.

And last but not least, the Justice Department could lead the way on restorative justice, primarily through clemency.  However, presidential clemency efforts for cannabis will have limited impact, given how few individuals face such charges at the federal level.  Given this the attorney general can encourage the use of presidential and state-level clemency powers.  He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others.  That proposal urges President Biden to pardon non-violent cannabis offenders.  That recommendation is an important one that will signal the new president’s views on drug policy and demonstrate a change in his approach to law enforcement policy since the 1990s.  It will also honor his commitment during the Democratic debates that cannabis users should not face jail time.

The attorney general and President Biden should seek to coordinate with like-minded governors of both parties to exercise far-reaching pardon powers to the victims of the War on Drugs.  A Rose Garden ceremony to exercise presidential pardon power, while virtually assembling a bipartisan group of governors doing the same would be a substantively impactful effort that would improve the lives of hundreds of thousands of Americans, far beyond what the president can do alone.

Taking a first step toward restorative justice is important given the racist roots and implementation of the War on Drugs.

February 25, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, February 22, 2021

"Teaching Drugs: Incorporating Drug Policy into Law School Curriculum (2020-21 Curriculum Survey Update)"

The title of this post is the title of this great new updated report authored by multiple researchers with The Ohio State University's Drug Enforcement and Policy Center (DEPC) now available via SSRN.  This document is an updated version of a great prior report with the same title, and both reports are the product of the collective great work of many DEPC folks with input from many legal academics and staff. Here is the abstract for this latest version of this report:

Despite the significant impact of laws and policies surrounding controlled substances, few classes in the typical law school curriculum focus on either basic legal doctrines or broader scholarship in this field.  This gap in law school curricula is especially problematic given the shifts in the landscapes of legalized cannabis and hemp, as well as the range of legal and policy responses to the recent opioid crisis.  To continue our efforts to better understand how law schools currently approach these issues and to identify how drug policy and law could be better incorporated into law school curricula, we conducted a third survey of all accredited law schools in the U.S.  The 2020-21 survey followed two previous annual surveys and a workshop of legal scholars who work in this space.  The surveys and 2019 workshop were designed to identify law school courses currently taught and the primary obstacles to teaching this subject matter.  The results show that the vast majority of law schools do not teach courses touching on drugs or the evolving legal structures around cannabis, and this is true even for law schools located in states with legalized cannabis markets.

February 22, 2021 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, February 18, 2021

DEPC event on "Criminal Justice Reform in Ohio" and original resources on "Drug Sentencing Reform in Ohio"

SB3-Panel_for-socialI am very excited that next week the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law is hosting a virtual panel discussion, titled "Where Do We Go From Here?: Criminal Justice Reform in Ohio" at 2pm on February 24, 2021.  Here is the description and run down of the exciting event:

Ohio has a long history of criminal justice reform and drug sentencing reform, and yet few can be pleased that Ohio still has the 12th highest incarceration rate in the country and one of the highest rates of overdose deaths. With the passage of HB1 and the failure of SB3 at the end of 2020, many are left wondering what can and cannot be achieved through legislative reforms in Ohio.  Please join us for a discussion of Ohio’s recent reform history, what we might expect in the near future, and how research and experience in other states can inform reform efforts in the Buckeye State.

Panelists

Speakers:
Sara Andrews, executive director of the Ohio Criminal Sentencing Commission
Gary Daniels, chief lobbyist at the ACLU of Ohio
Micah Derry, state director for the Ohio chapter of Americans for Prosperity
Andrew Geisler, legal fellow at The Buckeye Institute
Kyle Strickland, deputy director of race and democracy at the Roosevelt Institute and senior legal analyst at Kirwan Institute for the Study of Race and Ethnicity

Moderator:
Douglas A. Berman, executive director of the Drug Enforcement and Policy Center

I am also quite pleased to note that the link in the above description takes folks to this original resource page titled "Drug Sentencing Reform in Ohio."  Here is some of the discussion and resources to be found at that page:

Since 2014, seven states have enacted reforms that have defelonized low-level drug offenses: Alaska, California, Colorado, Connecticut Oklahoma, Oregon, and Utah.  In late 2020, the Ohio House of Representatives opted not to join this growing list by declining a vote on Senate Bill 3 which sought to reclassify some low-level drug offenses from felonies to misdemeanors.  Its origins can be traced back to the ambitious, but ultimately failed, 2018 Issue 1 ballot initiative.  The constitutional amendment initiative included language aimed at reclassifying as misdemeanors those offenses related to drug possession and use, prohibiting courts from sending people back to prison for non-criminal probation violation, and reallocating savings created from lowering prison populations toward drug treatment services.  Like SB3, Issue 1 was vehemently opposed by judges and prosecutors around the state.

Though SB3 stalled, an array of other criminal justice reforms were enacted in the last General Assembly of 2020, including House Bill 1.  HB1 allows more wrongdoers to potentially benefit from alternative dispositions and record sealing. Some argued that the passage of HB1 addressed sufficiently some of the concerns driving support for SB3....

In addition to organizing [the Feb 24 panel] event, DEPC has gathered a variety of other resources to aid in understanding the complex evolution of criminal justice and drug sentencing reforms in Ohio, including a visualization of Ohio incarceration rates and a timeline of Ohio reforms since 2010.  Please see below for commentaries and writings on current and past drug sentencing reform efforts in Ohio, DEPC’s prior events focused on Ohio’s criminal justice reforms, and research aimed at answering some of the most important questions raised by proponents and opponents alike.

February 18, 2021 in Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Tuesday, February 16, 2021

Drug Policy Alliance launches "Uprooting the Drug War" to highlight myriad harms of drug criminalization

As detailed in this press release, "the Drug Policy Alliance announced the launch of a major new initiative — Uprooting the Drug War — with the release of a series of reports and interactive website that aim to expose the impact of the war on drugs beyond arrest and incarceration."  Here is more on this important effirt:

The project is designed to engage activists across sectors and issues in understanding and dismantling the ways in which the war on drugs has infiltrated and shaped many other systems people encounter in their daily lives — including education, employment, housing, child welfare, immigration, and public benefits.... 
 
The goal of the new initiative — a natural extension of DPA’s decriminalization advocacy work — is to collaborate with aligned movements and legislators through meetings, webinars, convenings, and organizing to explore the ways the drug war has infected the systems and institutions that are at the core of their policy advocacy and create momentum for concrete policy proposals that begin to end the drug war in all its forms.
 
The project, which lives at UprootingtheDrugWar.com, includes analysis of six different systems through first-hand stories, data spotlights, and reports that take a deep dive into how drug war policies have taken root and created grave harm in the fields of education, employment, housing, child welfare, immigration, and public benefits.  Each report explores the history of how the drug war is waged (or enforced) in each system, as well as the underlying assumptions of drug war policies, through an examination of federal and New York state law.  In addition to the reports, six ‘Snapshots’ provide a brief overview of how drug war punishment and logic show up in these systems at a national level and make policy recommendations that would begin to extract the drug war from these systems.  Finally, the site offers six ‘Advocacy Assessment Tools,’ which give partners and legislators the opportunity to evaluate drug war policies and practices in their own community so they can take action to uproot the drug war locally.

February 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Sunday, February 14, 2021

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

6a00d83451574769e2025d9b40d8aa200c-320wiI have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

February 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, February 12, 2021

Reminder of next week's "Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

OSJCL-Symposium_College-graphic-768x509I flagged a few weeks ago this great symposium taking place (on Zoom) next Friday, February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event. Registration for this event is now available at this link, and here is how the event is described and organized:

The Ohio State Journal of Criminal Law, in collaboration with the Drug Enforcement and Policy Center, is pleased to announce our live symposium for Spring 2021, “Prosecutorial Elections: The New Frontline in Criminal Justice Reform.”  This virtual series is aimed at provoking thoughtful and well-rounded discussion surrounding the responsibility of the modern prosecutor in ushering in criminal justice reform and how that responsibility intersects with their role to uphold the law.  The panelists, including both academics and practitioners, will explore these questions from a variety of perspectives.  A schedule for the symposium can be found below.

Schedule:

10:15 a.m.-10:30 a.m.: Opening Remarks and Introduction

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

12:00 p.m.-1:30 p.m.Lunch break

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

3:30 p.m.-5:00 p.m.:Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

5:00 p.m.: Closing remarks

A list of the speakers and their biographies can be found here.

February 12, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, February 07, 2021

Reviewing notable criminal justice reform developments in (red) Ohio

I have long talked up criminal justice developments in Ohio because the state has long been a considered a bellwether for national developments.  But thanks to gerrymandering of state legislative district and other recent developments, Ohio is perhaps now more properly viewed as a red state.  Stiil, the political reality that Ohio's General Assembly is now GOP-heavy arguably make recent progessive criminal justice reforms in the Buckeye state even more noteworthy.  This new local article, headlined "Ohio makes big leaps forward on criminal justice changes," effectively reports on recent significant legislative action in this area, and here are excerpts:

Advocates for criminal justice reforms scored multiple wins in the closing weeks of 2020 that they say will give thousands of Ohioans a second chance.  Gov. Mike DeWine signed half a dozen bills into laws that will take effect later this year. The potential impacts are sweeping.

Incarcerated pregnant women will no longer be shackled to hospital beds as they deliver their babies.  Poor people will be able to perform community service as a way to get their driver’s licenses back instead of paying huge fees.  Ohioans who made mistakes will have an easier time getting professional licenses to advance their careers.  People suffering from serious mental illnesses at the time of the crime will not be executed. Teens who commit terrible crimes will serve their time but will still have the hope of making parole someday. 

And House Bill 1 will allow Ohioans in the throes of addiction to get drug treatment instead of a criminal record.  DeWine called House Bill 1 the most significant among the recent criminal justice reforms.  “There is a broad consensus in this country that people who commit crimes — non-violent offenses — because of the fact that they’re an addict, we all want to see them succeed.  We want them to get clean, stay clean and be good members of society,” said DeWine, a former Greene County prosecutor and state attorney general.  “There is a broad consensus that if they can get clean and on a pathway, we don’t want to tag them with a felony conviction. So this makes sense.”...

Support for HB1 came from the right and left — Ohio Supreme Court Chief Justice Maureen O’Connor, ACLU of Ohio, the conservative Buckeye Institute, public defenders and prosecutors.  Other bills signed into law by DeWine will reduce the “collateral sanctions” — additional punishments that were popular with tough-on-crime lawmakers over the past several decades.  Such sanctions made it more difficult to get professional licensing, housing, student financial aid, driver’s licenses and more.  “Again, we have a broad consensus that we shouldn’t be having those.  Once a person has served their time or served their probation, probably they should be able to move on with their lives,” DeWine said....

Additional reform efforts in 2021 will likely focus on Ohio’s cash bail system, the death penalty, knocking down the number of collateral sanctions people face when they’re convicted, holding the Ohio Parole Board accountable and pushing for criminal drug sentencing changes, said [Kevin] Werner of the Ohio Justice and Policy Center.

Also, while several criminal justice bills made it across the finish line, a comprehensive package of changes in Senate Bill 3 failed to win final approval.  SB3 called for reducing certain felony drug offenses to misdemeanors.  Shakyra Diaz, state director of the Alliance for Safety and Justice, which lobbied for SB3, said Ohio families still need solutions to the addiction crisis and the alliance will continue to work with lawmakers.  “Giving felony convictions to Ohioans with addictions only makes the problem worse, and inaction is not an option as more families lose loved ones to addiction and overdoses because they needlessly cycle through the criminal justice system without getting treatment,” Diaz said.

February 7, 2021 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, February 06, 2021

Notable new research on criminal justice impact of a safe consumption site

Policies and attitudes toward so-called "safe consumption sites" for drugs may serve as one of many interesting tests for whether the Biden Administration is prepared to take a whole new approach to the drug war.  If inclined to be more supportive of these sites, the Biden folks might want to make much of this notable new research recently published in the journal Drug and Alcohol Dependence.  Produced by multiple authors under the title "Impact of an unsanctioned safe consumption site on criminal activity, 2010–2019," here is the article's abstract:

Background

Health and social impacts of safe consumption sites (SCS) are well described in multiple countries.  One argument used by those opposed to SCS in the US is that findings from other countries are not relevant to the US context.  We examined whether an unsanctioned SCS operating in the US affected local crime rates.

Methods

Controlled interrupted time series (ITS) analysis of police incident reports for five years before and five years after SCS opening, comparing one intervention and two control areas in one city.

Results

Narcotic/drug incidents declined across the pre- and post-intervention periods in the intervention area and remained constant in both control areas, preventing an ITS analysis but suggesting no negative impact.  On average, incident reports relating to assault, burglary, larceny theft, and robbery in the post-intervention period steadily decreased at a similar rate within both the Intervention area and Control area 1.  However the change in rate of decline post-intervention was statistically significantly greater in the Intervention area compared to Control area 1 (difference in slope -0.007 SDs, 95 % CI: −0.013, −0.002; p = 0.01).  The Intervention area had a statistically significant decline in crime over the post-intervention period compared to Control area 2 (difference in slope −0.023 SDs, 95 % CI: −0.03, −0.01; p < 0.001).

Conclusions

Documented criminal activity decreased rather than increased in the area around an unsanctioned SCS located in the US in the five years following SCS opening.

February 6, 2021 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (0)

Thursday, January 28, 2021

New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses

As detailed in this press relase from Senator Cory Booker's office, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL), both members of the Senate Judiciary Committee, announced legislation that will finally eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced."  Here is more:

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses vastly differed. For instance, until 2010, someone caught distributing 5 grams of crack cocaine served the same 5-year prison sentence as someone caught distributing 500 grams of powder cocaine. Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color.

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the sentencing disparity from 100:1 to 18:1....  The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law.

And FAMM has this press release highlighting advocates support for this effort to remedy a long-standing and ugly federal sentencing injustice.  Here are excerpts:

FAMM and Prison Fellowship have teamed up to launch the #EndTheDisparity Campaign to urge Congress to eliminate the disparity between crack and powder cocaine-related sentences. Both organizations are circulating petitions and are planning a series of activities to build public support for reform.

“We have been fighting to repeal unjust sentencing laws for 30 years, and we’ve seen no greater injustice than the crack-powder disparity,” said FAMM President Kevin Ring. “We were glad Congress reduced the disparity in 2010, but it’s time to finish the job. We must remove this racially discriminatory scheme from the criminal code.”

In 2010, an overwhelming bipartisan majority in Congress passed and President Barack Obama signed the Fair Sentencing Act, which reduced the crack-powder disparity from 100:1 to 18:1. Lawmakers acknowledged that the arguments for the original disparity had been proven incorrect; crack cocaine is no more addictive than powder and is not more likely to cause violent crime.

“The unequal treatment of crack and powder cocaine offenses is among the most glaring examples of racial discrimination in the criminal justice system,” said Heather Rice-Minus, Senior Vice President of Advocacy and Church Mobilization for Prison Fellowship. “There is no sound scientific reason to punish powder and cocaine offenses differently and more importantly, there is a moral imperative to repent from this injustice.”

Uncontroverted was the fact that lengthy mandatory minimum prison terms for crack offenses disproportionately harmed Black people.  Crack usage rates did not differ greatly between white and Black Americans, but more than 80% of federal crack convictions involved Black defendants.

While the Fair Sentencing Act greatly reduced the number of people subject to the mandatory minimum sentences for crack, Black people still make up more than 80 percent of federal crack convictions....

For more information and background on the disparity and campaign see the resources below:

January 28, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (0)

Monday, January 25, 2021

US Sentencing Commission publishes report on "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."

The United States Sentencing Commission, despite its status as an incomplete agency due to the absence of confirmed commissioners for years, keeps churning out notable data reports.  Today brings this notable new publication, clocking in at 60 pages, titled "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."  Here is this report's "Key Findings" from this USSC webpage:

January 25, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Thursday, January 21, 2021

"Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

Thumbnail_image001The title of this post is the title of this great symposium taking place (on Zoom) on February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event.  This link provides a registration form, and here is schedule for the symposium:

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

  • Moderated by:
    • Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Maybell Romero, Associate Professor of Law at Northern Illinois University College of Law
    • Ronald Wright, Associate Dean for Research and Academic Programs and Needham Yancey Gulley Professor of Criminal Law at Wake Forest University School of Law
    • Carissa Byrne Hessick, Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law
    • Miriam Krinsky, Executive Director of Fair and Just Prosecution

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

  • Moderated by:
    • Amna Akbar, Associate Professor of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Angela J. Davis, Distinguished Professor of Law at American University Washington College of Law
    • Tamara Lawson, Dean and Professor of Law at St. Thomas University School of Law
    • Roger A. Fairfax, Jr., Patricia Roberts Harris Research Professor of Law and Founding Director of the Criminal Law and Policy Initiative at The George Washington University Law School
    • Olwyn Conway, Assistant Clinical Professor of Law at The Ohio State University Moritz College of Law

3:30 p.m.-5:00 p.m.: Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

  • Moderated by:
    • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law
  • Panelists:
    • Marilyn J. Mosby, Baltimore City State’s Attorney
    • Kay L. Levine, Professor of Law at Emory University School of Law
    • Alex Kreit, Director of the Center for Addiction Law & Policy and Assistant Professor of Law at Northern Kentucky University Chase College of Law

January 21, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, January 12, 2021

Split Third Circuit panel declares that planned safe injection site would be in violation of federal law

As noted in this post from 15 months ago, a federal district judge ruled a Philadelphia nonprofit group's plan to open a sef injection site would not violate the Controlled Substances Act. But, as reported in this local press piece, headlined "A federal court rejected the plan for a supervised injection site in Philly," a Third Circuit panel has now reversed this ruling. Here is the start of the majority opinion in US v. Safehouse, No. 20-1422 (3d Cir. Jan. 12, 2021) (available here):

Though the opioid crisis may call for innovative solutions, local innovations may not break federal law.  Drug users die every day of overdoses.  So Safehouse, a nonprofit, wants to open America’s first safe-injection site in Philadelphia.  It favors a public-health response to drug addiction, with medical staff trained to observe drug use, counteract overdoses, and offer treatment.  Its motives are admirable. But Congress has made it a crime to open a property to others to use drugs.  21 U.S.C. §856.  And that is what Safehouse will do.

Because Safehouse knows and intends that its visitors will come with a significant purpose of doing drugs, its safeinjection site will break the law.  Although Congress passed §856 to shut down crack houses, its words reach well beyond them. Safehouse’s benevolent motive makes no difference.  And even though this drug use will happen locally and Safehouse will welcome visitors for free, its safe-injection site falls within Congress’s power to ban interstate commerce in drugs.

Safehouse admirably seeks to save lives.  And many Americans think that federal drug laws should move away from law enforcement toward harm reduction.  But courts are not arbiters of policy. We must apply the laws as written.  If the laws are unwise, Safehouse and its supporters can lobby Congress to 11 carve out an exception.  Because we cannot do that, we will reverse and remand.

The dissenting opinion authored by Judge Roth starts this way:

The Majority’s decision is sui generis: It concludes that 8 U.S.C. § 856(a)(2) — unlike § 856(a)(1) or any other federal criminal statute — criminalizes otherwise innocent conduct, based solely on the “purpose” of a third party who is neither named nor described in the statute.  The text of section 856(a)(2) cannot support this novel construction.  Moreover, even if Safehouse’s “purpose” were the relevant standard, Safehouse does not have the requisite purpose.  For these reasons, I respectfully dissent.

It will be interesting to see if Safehouse seeks en banc review and/or certiorari.  It will also be interesting to see if the Justice Department under the Biden Administration might have a different view on safe injections sites than the Trump Administration.

January 12, 2021 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (3)

Sunday, January 10, 2021

"Racial Justice Requires Ending the War on Drugs"

The title of this post is the title of this new article authored by Brian Earp, Jonathan Lewis and Carl Hart along with with Bioethicists and Allied Professionals for Drug Policy Reform  in the American Journal of Bioethics. Here is its abstract:

Historically, laws and policies to criminalize drug use or possession were rooted in explicit racism, and they continue to wreak havoc on certain racialized communities.  We are a group of bioethicists, drug experts, legal scholars, criminal justice researchers, sociologists, psychologists, and other allied professionals who have come together in support of a policy proposal that is evidence-based and ethically recommended.  We call for the immediate decriminalization of all so-called recreational drugs and, ultimately, for their timely and appropriate legal regulation.  We also call for criminal convictions for nonviolent offenses pertaining to the use or possession of small quantities of such drugs to be expunged, and for those currently serving time for these offenses to be released.  In effect, we call for an end to the “war on drugs.”

January 10, 2021 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, January 09, 2021

SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences

The Supreme Court last night issued this order list which grants review in 14 new cases that will be heard later this SCOTUS Term.  Four of the cases involve criminal issues, and one is a sentencing case concerning the reach and application of the FIRST STEP Act's provisions making the reduced crack sentences of the Fair Sentencing Act retroactive.  This SCOTUSblog post has a lot more about the sentencing case and a brief review of the others:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive.  The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

  • Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation....
  • United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction....
  • United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

January 9, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, December 20, 2020

Read papers from "The Controlled Substances Act at 50 Years" in the latest issue of the Ohio State Journal of Criminal Law

EphuZAlXYAEwllCThough 2020 has been a rough year, I still feel fortunate that the last big in-person event I attended was this amazing conference, "The Controlled Substances Act at 50 Years," which was hosted in February 2020 by the Arizona State University Sandra Day O’Connor College of Law and put together by the amazing team at The Ohio State University's Drug Enforcement and Policy Center and ASU's Academy for Justice.  This terrific conference is on my mind now because the terrific Ohio State Journal of Criminal Law has recently published its Fall 2020 issue which includes these nine terrific papers from the conference:

The Tools at Hand: Surveillance Innovations and the Shifting Role of Federal Law Enforcement in Drug Control by Anne E. Boustead

Mandatory Minimum Entrenchment and the Controlled Substances Act by Stephanie Holmes Didwania

Preemption Up in Smoke: Should States Be Allowed a Voice in Scheduling Under the Controlled Substances Act? by Oliver J. Kim

Reconsidering Federal Marijuana Regulation by Paul J. Larkin Jr.

The Bureaucratic Afterlife of the Controlled Substances Act by Lauren M. Ouziel

Goodbye Marijuana Schedule 1 — Welcome to a Post-Legalization World by Melanie Reid

The Complex Interplay Between the Controlled Substances Act and the Gun Control Act by Dru Stevenson

Making Drug-Related Deportability 1914 Again? How a Strict “Categorical Approach” to the CSA Would Eliminate Unpredictable Agency Interpretation of the Immigration and Nationality Act by Michael S. Vastine

The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction by Erica Zunkel & Alison Siegler

December 20, 2020 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Friday, December 18, 2020

Bipartisan drug sentencing reform in Ohio thwarted by opposition from prosecutors (and former prosecutors)

As well reported in this local article, headlined "Ohio lawmakers pass one criminal justice measure, but a second, broader bill appears to be dead," a long-running effort to reform drug sentencing in Ohio failed to get completely to the finish line in the state General Assembly.  Here are the details:

The Ohio Senate passed a bill Thursday evening that urges more drug treatment and makes it easier for people to have their criminal records sealed.

But a broader criminal justice reform measure that reclassifies many smaller-level drug possession felonies to misdemeanors and requires addicts get treatment looks like it will die in these final days of the 133rd Ohio General Assembly....

“Barring a miracle, I believe it’s dead,” said the Buckeye Institute’s Greg Lawson. “Everything I’ve heard is it’s not coming to the floor.”

A large coalition that includes dozens of organizations across the ideological spectrum — from the conservative Buckeye Institute and the Ohio chapter of Americans for Prosperity to the progressive American Civil Liberties Union of Ohio and Faith in Public Life — was pushing for both bills to pass. Advocates are disappointed that SB 3 appears to have failed....

SB 3 had powerful detractors in prosecutors and judges — including Ohio Chief Justice Maureen O’Connor — who felt the bill would strip judges of discretion, would neutralize the tools that drug courts can use to nudge people through rehabilitation, and would remove an incentive to overcome addiction if there was no threat of a felony conviction.

Gov. Mike DeWine, a former Ohio attorney general and county prosecutor, has said he opposed the bill.

What that ignores, argued Micah Derry, AFP Ohio director, is that felonies follow people for the rest of their lives, even when someone does recover from addiction.  These days, with the power of data mining on the Internet, sealing a record may not shut the books on one’s past.  Many companies that specialize in employment background checks can still find past crimes, thanks to capturing and saving data over time.  “There’s not a single county prosecutor who is a person of color,” Derry said. “Not to get too racial about it, but there’s a reason why people of color have the books thrown at them more than other people.”

Earlier on Thursday, Harm Reduction Ohio, the largest distributor of naloxone in the state, reported drug overdose deaths were high in 2020, with many counties reporting records for the year — especially in Central Ohio and the Appalachian part of the state.  Final data for the year isn’t expected until mid-2021 from the Ohio Department of Health.

The crux of SB 3, mandatory treatment for addicts and reclassification of many felonies to misdemeanors, will unlikely be resurrected next year, said ACLU of Ohio’s Chief Lobbyist Gary Daniels. DeWine will still be in office.  So will Ohio House Speaker Bob Cupp, a former Ohio Supreme Court justice who hasn’t brought it to a floor vote.

Especially because I know many folks who have worked so very hard for years to advance SB3, it is really disappointing that House Speaker Cupp (a former local prosecutor) would not allow a floor vote even after the bll earned committee approval.  I sense that SB3 would have passed in the Ohio House if given a floor vote, and I suspect Gov DeWine (a former local prosecutor) might have ultimately been convinced to sign the bill or allow it to become law.  Especially because House Speaker Cupp perviously served on the Ohio Supreme Court, I wonder if the consistent SB3 opposition of Chief Justice O'Conner (a former local prosecutor) contributed to his unwillingness to even allow this bill to get a vote.

Among other stories, this sad legislative tale serves as yet another reminder of how hard it will be to even slightly revamp the war on drugs no matter how clear its failures are (as well documented by Harm Reduction Ohio).  SB3 did not decriminalize anything (and I believe it increased sentences for hgh-level trafficking); the bill simply sought to reclassify the lowest level drug-possession offenses from felonies to misdemeanors.  But after two years of very hard work by effective advocates on both sides of the aisle, prosecutors and former prosecutors were able to keep this modest reform from even getting a full and fair vote in the Ohio General Assembly.  Sigh.

December 18, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, November 22, 2020

"Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze"

The titl of this post is the title of this notable new article available via SSRN and authored by Michael Sousa. Here is its abstract:

Drug treatment courts represent a paradigm shift in the American criminal justice system.  By focusing on providing drug treatment services to low-level offenders with severe use disorders rather than sentencing them to a term of incarceration, drug courts represent a return to a more rehabilitative model for dealing with individuals ensnared by the criminal justice system and away from the retributive model that dictated punishment in the latter half of the twentieth century.  The existing scholarship exploring how drug treatment courts function has been largely atheoretical, and past attempts to harmonize theory to drug treatment courts fail to demonstrate how these institutions normalize offenders prior to reintegration into society.  Relying on Michel Foucault’s notion of governmentality together with his concepts of “technologies of power” and “technologies of the self,” I develop the analytical framework of “therapeutic discipline” as a more robust lens through which to understand the operation of drug treatment courts nationwide.  My contribution of “therapeutic discipline” to the existing literature is bolstered by representative examples of qualitative data taken from a long-term, ethnographic study of one adult drug treatment court.

November 22, 2020 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 19, 2020

Further reflections on reform after "war on drugs" loses big in 2020 election

Rightly so, folks are still chatting about the meaning and impact of the election results ushering significant drug reforms.  Here are some of many pieces covering this interesting ground:

November 19, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States | Permalink | Comments (0)

Tuesday, November 10, 2020

"Drug Policy Implications: Elections 2020"

Drug-Policy-Implications-Elections-2020_for-web-email2The title of this post is the title of this panel discussion taking place (on Zoom) next Monday afternoon, November 16, 2020 from 1-2:15 pm EST, sponsored by the Drug Enforcement and Policy Center.  Here is the basic description of the event and the planned speakers:

The 2020 election will have a monumental impact on how the United States addresses a broad range of policy issues, and drug enforcement and policy is no exception.  Numerous states approved medical or full marijuana legalization via ballot initiative, and voters in other states weighted in on drug-related criminal justice ballot initiatives.  At the federal level, marijuana reform has been gaining momentum and federal officials will undoubtedly take cues from the nationwide election results to determine the pace of reform on an array of drug enforcement and policy issues.

Join our panel of experts for a post-election discussion of the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Speakers

  • John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies, Brookings Institution
  • Maritza Perez, director of the Office of National Affairs, Drug Policy Alliance
  • Tamar Todd, legal director, New Approach PAC

Moderated by:

Douglas A. Berman, executive director, Drug Enforcement and Policy Center

November 10, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Noticing marijuana reform as criminal justice reform in Arizona after passage of Prop 207

Regular readers, particularly those who also keep up with my work over at Marijuana Law, Policy & Reform, know that I strongly believe that marijuana reform can and should always be a form of criminal justice reform.  This local article, headlined "Prop 207 could have huge impact on criminal justice reform in Arizona," details part of this story in one state one week after its big reform vote:

We are learning more about how Proposition 207 will impact our criminal justice system. The proposition legalizes recreational marijuana in Arizona and will become official when election results are certified in about a month.

Steven Scharboneau, Jr. is an attorney with the Rosenstein Law Group. “Arizona is one of the only states where a drug conviction for marijuana is a felony conviction, so it has life-lasting implications," Scharboneau said....

Adam Trenk is a Rose Law Group partner and director of the firm’s cannabis law department. “I think it’s really a big deal and a really big step for our state," Trenk said. Trenk said Prop 207 is really the first of its kind. “Historically we would, we being the state’s court systems, would seal records, but they wouldn’t necessarily expunge records," Trenk said.

Starting July 12, 2021, people previously convicted of select marijuana offenses can petition to have their records expunged. Essentially, this will give people a clean slate, which is what Scharboneau said his work is all about. “If we really work hard to make the laws more fair so people can actually have a fair chance at that second chance," Scharboneau said....

Rebecca Fealk, the Legislative Policy Coordinator there, said the group is working to get the word out about this measure and the impact it will have on criminal justice reform. “If somebody had a marijuana conviction, they were often denied food stamps, they were denied Pell Grants to be able go to college and do these things that allowed them to be part of our community," she said. “And so by having the opportunity to remove those, we are allowing people to be more successful and remove the harm the criminal justice system has done."

I believe that the Montana marijuana legalization ballot initiative also included some remedial criminal justice provisions, but that such reforms will require follow-up legislative action in other states.  Still, I sense there is continuing and growing momentum in marijuana reform quarters to ensure any and all reforms come with remedial provisions.  When I wrote an article on this topic a few years ago, "Leveraging Marijuana Reform to Enhance Expungement Practices," I was eager to see these intersecting issues get more attention, and I am now quite happy that they are.

UPDATE: I just saw this official press release from yesterday that details an immediate and tangible criminal justice impact from the passage of Prop 207 in Arizona. The release is titled "MCAO to Dismiss All Pending and Unfiled Charges of Possession of Marijuana," and here is the full text:

With the passage of Proposition 207, the Maricopa County Attorney’s Office (MCAO) will be dismissing all pending and unfiled charges of possession of marijuana and any associated paraphernalia charges that are before this office. Instead of continuing to spend resources on these cases, this office will begin implementing the will of the voters immediately.

We are instructing Deputy County Attorneys to file a motion to dismiss any charge covered by Proposition 207. If those charges make up the entirety of the charges of the case, the entire case will be dismissed. If there are other felony charges the case will remain pending, but we will file motions to dismiss the charges covered by Proposition 207. This will include all cases pending in Early Disposition Court, those currently in diversion or pending trial, and those set for sentencing or probation violation hearings.

Priority will be given to cases with court dates and those in custody. The office will also be filing motions to dismiss bench warrant cases where all the charges are covered by Proposition 207.

November 10, 2020 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Sunday, November 08, 2020

Pondering marijuana reform echoes after another historic election cycle

I briefly flagged here a few days ago the remarkable success of drug policy reform ballot initiatives in red and blue states nationwide.  And the success particularly of marijuana reform initatives in Arizona, Mississippi. Montana, New Jersey, and South Dakota has me thinking and writing a lot about what's next in this space over at Marijuana Law, Policy & Reform.  Specifically, I have been blogging reactions to marijuana's big election night via these new posts:

November 8, 2020 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Saturday, November 07, 2020

"Promoting Expungements to Minimize the Adverse Impact of Substance Use Disorder Criminalization"

The title of this post is the title of this notable new article authored by Brittany Kelly, John Heinz, Anthony Singer and Aila Hoss now available via SSRN.  Here is its abstract:

Research has already documented the irreparable harm of the criminalization of drugs.  In the United States, these policies have led to disproportionate rates of incarceration of black men, separated children from their parents in foster care and custody proceedings, and often left people unable to secure employment and housing.  Criminalization has also had harmful impacts from a public health perspective.  Substance use disorder is a medical condition with established criteria for diagnosis.  Criminalizing SUD instead of treating it often leaves people without access to treatment for their condition.  Criminalization of drug paraphernalia possession has also undermined the efficacy of public health strategies, such as overdose immunity laws and syringe service programs.

Many advocates and scholars across human rights, public health, and other disciplines argue that decriminalization and legalization of drugs is necessary.  While some states and localities have begun to decriminalize and legalize drugs, most do not.  And, in many jurisdictions, this would be unrealistic in the near future.  Indiana law, for example, makes possession of drug paraphernalia a misdemeanor offense.  The state legislature in fact elevated syringe possession to a felony in 2015.  What other legal strategies are available when decriminalization and legalization are not?

This article explores expungement as a tool in mitigating the harmful impacts of criminalizing substance use disorder.  It discusses the inadequacies of current criminal-based strategies for responding to the SUD crisis and the public health impacts of criminalization and describes expungement law generally and provides an in-depth summary of Indiana’s expungement laws.  Given the substantial nuances within expungement law, this article provides analysis on how they can be best structured to promote their use.  It argues that Indiana could implement a variety of strategies to promote expungement laws and thereby support individuals with substance use disorder.

November 7, 2020 in Collateral consequences, Drug Offense Sentencing | Permalink | Comments (0)

Thursday, November 05, 2020

An effective disquisition on the drug war's descent

This lengthy new New York Times article provides a thoughtful review of how diverse coalitions have now come together to start unwinding the war on drugs. The full title of this piece highlights its themes: "This Election, a Divided America Stands United on One Topic: All kinds of Americans have turned their back on the destructive war on drugs." I recommend the full piece, and here is how it starts and ends:

It can take a while to determine the victor in a presidential election.  But one winner was abundantly clear on Election Day. Drugs, once thought to be the scourge of a healthy society, are getting public recognition as a part of American life. Where drugs were on the ballot on Tuesday, they won handily.

New Jersey, South Dakota, Montana and Arizona joined 11 other states that had already legalized recreational marijuana. Mississippi and South Dakota made medical marijuana legal, bringing the total to 35.

The citizens of Washington, D.C., voted to decriminalize psilocybin, the organic compound active in psychedelic mushrooms. Oregon voters approved two drug-related initiatives. One decriminalized possession of small amounts of illegal drugs including heroin, cocaine and methamphetamines. (It did not make it legal to sell the drugs.) Another measure authorized the creation of a state program to license providers of psilocybin.

Election night represented a significant victory for three forces pushing for drug reform for different but interlocking reasons. There is the increasingly powerful cannabis industry. There are state governments struggling with budget shortfalls, hungry to fill coffers in the midst of a pandemic.

And then there are the reform advocates, who for decades have been saying that imprisonment, federal mandatory minimum sentences and prohibitive cash bail for drug charges ruin lives and communities, particularly those of Black Americans.

Decriminalization is popular, in part, because Americans believe that too many people are in jails and prisons, and also because Americans personally affected by the country’s continuing opioid crisis have been persuaded to see drugs as a public health issue....

If states are the laboratories of democracy, then, as Mr. Pollan put it, some of the measures passed on Tuesday will set up interesting experiments.  Neighboring states will watch as Montana and New Jersey create regional cannabis destinations to be envied, imitated or scorned; unlike some other states, Montana and New Jersey do not directly border states where marijuana is fully legal, so they could draw more customers from out of state (though it is illegal to bring marijuana into a state where it is criminal). 

And it’s not entirely clear that marijuana is always the fiscal boost its champions say it is, even as cannabis tourism has helped states like California and Colorado. A state assessment of the financial impact of legalization in Montana, for example, showed that the state expected significant revenue — as much as $48 million a year in 2025 — but that its implementation costs would be nearly as high.

Policy wonks will assess the performance of Oregon’s health authority as it creates its program to license psilocybin distributors, an unusual function for a state department of health regardless of the drug in question.  And Americans all over the country will note — warily or hopefully — what happens in Oregon, now that possession of all controlled substances has been decriminalized.

Adam Eidinger, an activist in Washington, D.C., who proposed the ballot measure that pushed to legalize marijuana there, was also the treasurer of the campaign to decriminalize psilocybin.  (The campaign operated out of his house in the Kalorama neighborhood, home to the Obamas and Jared Kushner and Ivanka Trump.)

Next year, Mr. Eidinger plans to campaign for an initiative in D.C. to decriminalize possession of all controlled substances, much like the one that passed in Oregon. “People want to end the drug war,” he said.

Mr. Sabet, the former White House drug policy adviser, did not expect the nation to follow in Oregon’s footsteps — at least not immediately. “I don’t know if I’d put my money on America wanting to legalize heroin tomorrow,” he said.

November 5, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, November 04, 2020

"Drugs Won Big During the U.S. Election"

The title of this post is the title of this Vice piece highlighting one clear pattern of clear winners during election 2020. Here are excerpts:

Despite the uncertainty over the outcome of the U.S. presidential race Wednesday morning, Mississippi cannabis advocate Natalie Jones Bonner was feeling “absolute joy.”  Jones Bonner, 59, was celebrating the passing of Initiative 65, a ballot measure that will establish a medical cannabis program in the state.

Mississippi is one of a handful of states to pass drug reform measures last night.  In a groundbreaking decision, Oregon voted to support Measure 110, which will decriminalize all drugs, including cocaine and heroin.  Oregon also voted to legalize access to psychedelic mushrooms for medicinal purposes.

Arizona, Montana, New Jersey, and South Dakota all voted to legalize cannabis for recreational purposes.  South Dakota additionally voted yes to establishing a medical cannabis regime. Voters in the District of Columbia passed a measure to decriminalize shrooms.

The outcomes are a boon for drug reform advocates and the cannabis industry, making the possibility of federal weed decriminalization more feasible.  Currently, 33 states allow medical cannabis and 11 have recreational regimes.  Several of the states that passed measures last night have historically been proponents of the war on drugs, with Black people disproportionately arrested for drug crimes....

Matt Sutton, spokesman for the Drug Policy Alliance, said the support of drug reform is crucial in the context of wider conversations around police brutality and the failings of the criminal justice system.  He said Oregon’s decriminalization measure could result in a 95 percent decrease in racial disparities in arrests, according to the Oregon Criminal Justice Commission.

Sutton said it’s “remarkable” that weed legalization would pass in states like Montana, which has the highest rate of racial disparities in weed arrests, and South Dakota, where 10 percent of all arrests are tied to cannabis.

Economic gains, particularly as the pandemic is draining state resources, are in part behind the bilateral support of cannabis reform.  Sutton said he expects New Jersey’s decision to legalize cannabis to light a fire under New York, which has stalled in setting up its legal recreational regime.

Over at Marijuana Law, Policy & Reform I have been blogging a few reactions to marijuana's big election night via these two new posts:

November 4, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Tuesday, November 03, 2020

Some places to watch for results on criminal justice ballot initiatives

Images (2)The folks at Vox have created this webpage which will help track "live results" from some of the criminal justice ballot initiatives that voters are considering today around the country. Here is the set up:

In Oklahoma, voters could ban harsh sentencing enhancements that can keep people in prison longer for nonviolent crimes. In California, voters will consider three measures: one to affirm the end of cash bail, another to let people vote while on parole, and a third to roll back recent criminal justice reforms. In Nebraska and Utah, voters could prohibit slavery as a criminal punishment, including forced prison labor.  And in Kentucky, voters could approve a controversial crime victims’ rights law.

Not all of these are for reform as many people think of it today. Some of the initiatives, particularly in California and Kentucky, have been criticized by activists seeking to end mass incarceration and the war on drugs. But depending on how voters decide on these initiatives, they could continue the broader work of the past decade to fix America’s punitive criminal justice system.

The Vox page leaves out the large number of drug reform initiatives, but thankfully the folks at Marijuana Moment have created this great webpage with tracking tools to follow all the marijuana and drug reform ballot initiatives that voters are considering today around the country.  Here is how its set up:  

Marijuana Moment is tracking 11 separate cannabis and drug policy reform measures on ballots in seven states.  Stay tuned to this page for results as votes are counted.

Make sure to follow Marijuana Moment and our editors Tom Angell and Kyle Jaeger on Twitter for live news and analysis, and check our homepage for individual articles about each ballot measure as races are called.

Thanks to support from ETFMG | MJ, we have a single tracker tool below that lets you cycle through all of the key measures as well as separate standalone tools for each initiative.

And do not forget about this great web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  

Though I am interested in all these results, I am especially eager to see how Oklahoma's novel criminal history reform measure, how South Dakota's marijuana legalization initiative, and how Oregon's drug decriminalization measure fare. The nature of the issues and the states in which they are taking place strike me as especially interesting and important.

As always, I would be interested to hear from readers about what issues or races they are following especially closely tonight.

November 3, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

Wednesday, October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, October 25, 2020

Covering just some of many criminal justice reforms stories percolating in 2020 election

Every election is important for the fate and future of criminal justice reform, but every even-year Fall it is hard not to get caught up in the notion that this year's election is uniquely significant and consequential.  As I noted in this prior post, the discussion at the last Prez debate leads me to be (foolishly?) hopeful that we will see some follow up to the FIRST STEP Act or some other form of of federal criminal justice reform in the coming years no matter who prevails at the federal level.  But surely the scope and contents of possible federal reform will depend not only on who is in the White House and who is in charge in Congress, but also on what kinds of reforms move forward and prove successful at the state and local level.   

Because the FIRST STEP Act at the federal level was made possible in part by the political and practical successes at the state level, even those focused primarily on the federal system ought to keep a close eye on state and local criminal justice reform and election realities.  Helpfully, there is a lot of good press coverage on all these topics these days, and here is a sampling:   

Some National Perspectives:

From The Appeal, "Your Guide To 30 Sheriff And Prosecutor Elections That Could Challenge Mass Incarceration: These are key local elections where criminal justice reform is on the line next month."

From the Drug Enforcement and Policy Center, "Drug Reforms on the 2020 Ballot: A closer look at drug policy reform decisions voters will make during the 2020 election"

From Fox News, "Marijuana-legalization supporters tout economic benefits in new voter pitch: Advocates argue sales and excise taxes would help bail out states crushed by coronavirus"

From Reason: "On Criminal Justice, Trump and Biden Are Running Against Their Own Records: The progressive who helped usher in mass incarceration is running against the law and order conservative who let prisoners go free."

From Vox, "How 2020 voters could change the criminal justice system, in 6 ballot measures: Voters in several states have a chance to change the criminal justice system in 2020."

From Vox, "2020’s psychedelic drug ballot measures, explained: Oregon and Washington, DC, voters may relax their laws for psychedelic drugs."

 

Some State Specifics:

From the Denver Post, "Half of Colorado’s district attorneys will be replaced after election, setting scene for future of criminal justice reform"

From Governing, "California to Vote on What’s Next for Criminal Justice Reform: The state’s Proposition 20 would expand felonies which are ineligible for parole and collect DNA samples of misdemeanor offenders. Californians must decide if it assures public safety or is backward progress."

From The Oklahoman: "Five things to know about Oklahoma State Question 805"

From Vox, "Oregon’s ballot measure to decriminalize all drugs, explained: The ballot measure is trying to move the state from a criminal justice to a public health approach on drugs."

October 25, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (2)

Saturday, October 24, 2020

"What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life"

The title of this post is the title of this interesting new piece authored by Josh Bowers available via SSRN.  Here is its abstract:

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly.  In this article, I question that assumption and propose a radical alternative.  Consider the individual punished repeatedly for hopping subway turnstiles.  As convictions accumulate, sentences rise — to weeks and ultimately months in jail.  At some point, criminality comes to signal something other than the need for punishment.  It signals the presence of need.  Perhaps, the recidivist was compelled by economic or social circumstances.  Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one.  No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences.  My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists.  But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.  My goals are at once narrow and broad.  I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.  I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally.  I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings.  I endorse “harm reduction,” the governance philosophy that grounds those reforms.  And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

October 24, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, October 23, 2020

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

6a00d83451574769e2026bde959014200c-320wiI said before that I was going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  So, here again is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 23, 2020 in Drug Offense Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Thursday, October 22, 2020

Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020

Few months ago in this post I wished that we could somehow arrange for one of the then-planned Prez debates to be entirely about criminal justice issues.  Of course, that did not happen (and only two of the three planned debates even happened).  Still, during the final Prez debate of this election cycle, criminal justice issues received more discussion than in any other Prez debate in recent memory, and I am tempted to call the discussion heartening for a variety of reasons.

For starters, Prez Trump bragged repeatedly about his role in achieving "criminal justice reform and prison reform," and he also criticized former VP Biden for his past role in enacting federal criminal justice legislation in the 1980s and 1990s that "put tens of thousands of mostly Black young men in prison."  It was not that long ago that candidates were regularly competing to claim they were tougher than their opponents, but tonight Prez Trump assailed Biden for his tough-on-crime past while claiming credit for most progressive federal criminal justice reform in a generation (the FIRST STEP Act).

Meanwhile, VP Biden stated that the drug offense part of federal criminal legislation in the 1980s and 1990s was "a mistake," and he bragged that during the Obama administration "38 thousand prisoners [were] released from federal prison [and] over 1000 people given clemency."  And even more notable was Biden's plain statement that "there should be no minimum mandatories in the law."  Again, it was not that long ago that politicians were eager to brag about enacting mandatory minimums and about putting more people in prison.  Now the talking points focus on releasing prisoners and the pledge it to repeal mandatory minimums.

For these reasons and others, I remain mildly optimistic that we will see some measure of progress on some kind of follow up to the FIRST STEP Act or some other form of criminal justice reform in the coming years no matter who prevails in the coming election.  But I think the scope and contents of reform will surely look a look different, and the pace and implementation of any reform will surely transpire a lot differently, depending on who is in the White House and who is in charge in Congress.  Interesting times.

October 22, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Tuesday, October 20, 2020

"Drug Reforms on the 2020 Ballot"

2020-Ballot-Project-Header_for-web2The title of this post is the title of this great new web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  Here is introduction to the detailed state-by-state materials:

A closer look at drug policy reform decisions voters will make during the 2020 election

On election day 2020, voters will decide more than the next United States President. Drug policy and enforcement reforms will appear on numerous state-level ballots. Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market. And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.

To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020. Read on for a list of initiatives we will be watching this November in the areas of marijuana legalizationpsychedelics, and criminal justice.

Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

October 20, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States | Permalink | Comments (0)

Monday, October 19, 2020

US Sentencing Commission releases its latest updated "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report"

I just noticed that the US Sentencing Commission today released this updated new version of its data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report." The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through June 30, 2020 and for which court documentation was received, coded, and edited at the Commission by October 15, 2020.

These new updated data from the USSC show that 3,363 prisoners have been granted sentence reductions.  The average sentence reduction was 71 months of imprisonment (roughly a quarter of the original sentence) among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to now assert that this part of the FIRST STEP Act alone, by shortening nearly 3361 sentences by nearly 6 years, has resulted in nearly 20,000 federal prison years saved! (That is an eliminations of two hundred centuries of scheduled human time in federal cages, if you want to think of it another way.)

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation. But these latest data show yet again how this small piece has had big impact in lots of years of lots of lives. And, of critical importance and note to be overlooked, people of color have been distinctly impacted: the USSC data document that nearly 92% of persons receiving these FSA sentence reductions were Black and more than another 4% were Latinx.

October 19, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, October 14, 2020

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

I said before that I was going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  So, here again is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 14, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

Thursday, October 08, 2020

"A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis"

The title of this post is the title of this paper recently posted to SSRN authored by Emily O'Brien. Here is its abstract:

Wisconsin’s drug-induced homicide law, known as the Len Bias law, was intended to prosecute for-profit drug dealers and was rarely charged for several decades after it was enacted in 1986.  In recent years, prosecutors have brought hundreds of Len Bias charges in response to opioid deaths.  Often, these charges are brought against overdose victims’ friends and family members — people who are also mired in addiction and who shared or helped obtain the fatal drug.  In contrast, Wisconsin’s Good Samaritan overdose law (GSOL), enacted in 2014, focuses on harm reduction.  If a person calls for help when another person is overdosing, the law provides both people with some insulation from prosecution of a range of drug-related charges.  These laws approach the problem of overdose death from very different angles: The Len Bias law punishes addicts for their role in overdose deaths, while the GSOL offers addicts protection from prosecution in order to encourage calls for medical intervention in overdose situations.  Unfortunately, the current implementation of the Len Bias law diminishes the potential of GSOL to save lives because addicts are faced the possibility of a homicide charge when they summon help for an overdose victim.

With the rise of lethal synthetic opioids in Wisconsin, the criminal justice system must adjust its current laws and practices in order to reduce overdose deaths.  The criminalization of addiction represented by the Len Bias law thwarts rehabilitation efforts, miring addicts in a cycle of incarceration and drug use that ends with death in too many cases.  This Comment proposes a solution: separating addicts from for-profit drug dealers in the eyes of the law by implementing a joint-user defense in Len Bias cases. Addicts are more likely to use opioids with other addicts than alone.  By removing the possibility of a homicide conviction, addicts will more readily utilize the GSOL and call for medical intervention when a fellow addict is overdosing. Additionally, separating addicts from dealers allows the Len Bias law to be charged in accordance with its intended purpose, while freeing up investigatory and prosecutorial resources for the more complex task of investigating commercial drug dealers and disrupting the drug trade.  This proposed solution would begin to align Wisconsin’s criminal laws with the state’s rehabilitation-focused public health efforts at combating opioid addiction in communities and reducing overdose deaths.

October 8, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, October 05, 2020

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

I am going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  Here is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 5, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

Thursday, September 24, 2020

Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

Understanding-Drug-Sentencing_for-web2I am pleased to highlight a new call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  Here is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

September 24, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

Wednesday, September 16, 2020

Can a modest federal bail reform bill with bipartisan sponsorship become law in these crazy times?

I do not blog much about bail reforms issues, though these topics were quite "hot" even before the pandemic and these issues seem even more pressing now.  And given notable research documenting a link between federal pretrial release and sentencing outcomes, I am particular interested in the new bill filed earlier this month as discussed in this press release:

U.S. Senators Dick Durbin (D-IL), Mike Lee (R-UT), and Chris Coons (D-DE), members of the Senate Judiciary Committee, today introduced the bipartisan Smarter Pretrial Detention for Drug Charges Act of 2020, a targeted bill that would eliminate the blanket presumption of pretrial detention for most federal drug charges.  Pretrial detention rates in the federal system are at record high levels and on an upward trend across all demographic groups.  This legislation would permit federal courts to make individualized determinations regarding whether pretrial detention is appropriate for each defendant charged with a nonviolent drug offense.  Any defendant found to be a flight risk or a threat to public safety would be detained.

This supportive one-pager from the Due Process Institute provides a great account of this bill and its wisdom.  Here is an excerpt:

When a person is arrested and accused of a crime, a judge must determine whether he or she will be released with certain conditions pending resolution of their case or be detained until their conviction or acquittal occurs.  In federal court, the judge’s decision whether to release or detain someone pretrial is governed by 18 U.S.C. § 3142, which sets forth several factors for the judge to take into consideration.  The main directive of the statute is that judges should release persons accused of unproven crimes who are not flight risks and who do not “pose a danger to any other person or the community.”  The federal bail statute also, however, includes a small list of offenses for which a legal presumption in favor of incarceration is imposed based solely on the criminal charge instead of any specific assessment of the accused.  While many of the offenses included in this presumptive list might make sense given the gravity of the accusation, the list also unfortunately includes many nonviolent federal drug offenses.

Persons accused of drug offenses represent over 42% of those charged with non-immigration federal crimes.  Statistics show that for them — the second largest group of people in the federal system — it is difficult to overcome this presumption.  In fact, recent federal data show that more than 60% of those charged with drug offenses will be incarcerated before trial.  In addition, data show that pretrial detention puts these defendants at a greater sentencing disadvantage if convicted versus those who are granted pretrial release.  There is also persuasive evidence that the statutory presumption has failed to correctly identify which defendants actually even present a risk.  Unfortunately, the racial disparities we see throughout the criminal system also appear in pretrial release rates in drug cases.  Moreover, some of the most vulnerable people in our society are those currently locked inside jails amid the COVID-19 pandemic — people who have not been found “guilty” of anything and are merely incarcerated while they defend or resolve their charges.  And this pro-carceral presumption is extremely costly.

The Smarter Pretrial Detention for Drug Charges Act presents a simple, effective solution supported by leaders and organizations from both sides of the aisle.  It would merely remove the presumption of pretrial incarceration that currently applies to those charged with nonviolent drug offenses.  The passage of this bill will not mean that all, or even most, accused federal drug offenders will be released before trial.  It would, however, simply permit a federal judge to make a more individualized determination of whether to detain someone based on the same factors they use to evaluate practically everyone else.  Anyone deemed a flight risk or a danger to public safety will still be detained.  Anyone released can still be subject to multiple conditions and community supervision by pretrial services.

September 16, 2020 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (2)

Saturday, September 12, 2020

A timely reminder that the war on drugs, and even the war on marijuana, is not anywhere close to over

Just last night I flagged here a new article by Michael Vitiello about the "war on drugs" and extreme sentences for drug crimes.  And this morning I saw this news article from Kansas this past week that provides a reminder that the US drug war as operationalized through extreme sentences even for marijuana offenses remains a very current reality for far too many.  The piece is headlined "Man serving 7.5 years on marijuana case says Kansas’ sentencing laws aren’t just," and here are excerpts:

A man sentenced to more than seven years in prison on a marijuana case wants Kansas Gov. Laura Kelly to consider his request for clemency and to see the state change its drug penalty laws.  Donte Westmoreland, 25, had no prior convictions when he was found guilty of possession of marijuana with intent to distribute and conspiracy to distribute in May 2017 in Riley County. Judge John Bosch sentenced him to 92 months....

Kansas has a sentencing range guideline intended to promote uniformity in penalties. Bosch gave Westmoreland the lower end of the range.  But Christopher Joseph, Westmoreland’s attorney during sentencing and his appeal, said many judges across the state depart from the guidelines for marijuana cases, instead handing down probation....

According to a motion filed in the case, probation was given in 95% of the marijuana distribution cases in Kansas involving defendants with low criminal history scores.

On March 8, 2016, police observed two vehicles traveling in close proximity to each other. Officers testified that they believed a Hyundai was an escort vehicle for a Lexus. Westmoreland, of Stockton, California, was a passenger in the Hyundai, which was stopped for an obstructed license plate and searched in Geary County.  A small amount of marijuana was found in the trunk, according to court documents.  The Hyundai was released and it continued to an apartment complex in Riley County, where the Lexus met them about 20 minutes later. Officers followed them to the apartment of Jacob Gadwood, where they searched the Lexus and found packages of drugs.

Westmoreland and the driver of the Hyundai were arrested. Three other co-defendants who fled the scene were later taken into custody. Gadwood agreed to become an informant for prosecutors and testified that Westmoreland came to his apartment to sell marijuana. The five defendants in the case faced varying charges related to possessing and distributing marijuana, court records showed.  Sentences ranged from time served to Westmoreland’s 92 months, which was the longest.

In a statement to The Star, Riley County Attorney Barry Wilkerson said Westmoreland went to Manhattan to sell large amounts of marijuana with three others in two vehicles, one of which was a decoy.  “These were sophisticated dealers of narcotics,” Wilkerson said. “One of the vehicles was a Lexus.  92 months was a fair sentence under the circumstances.”

In Kansas, a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter. “The current Kansas law and penalties for marijuana are unjust,” Joseph said. “The law is so out of sync with reality at this point.”

Lauren Bonds, legal director of the ACLU of Kansas, said Kansas is being closed in on.  Recreational marijuana became legal in Colorado in 2014.  Missouri and Oklahoma have passed medicinal marijuana laws and Nebraska has taken steps to decriminalize the drug....

Kansas Sen. Richard Wilborn, R-McPherson, chairs the Judiciary Committee and said sentencing guidelines is one of the topics “in the forefront.” He said he would take any recommendations from the Criminal Justice Reform Commission seriously, but that legislation has to be proportional with other illegal substances and not target a single issue.

Westmoreland said he supports reforms that address racial and sentencing disparities.  Twenty-eight percent of the Kansas Department of Corrections’ population is Black. According to the U.S. Census, Black people make up 6.1% of the state.

Earlier this year, Westmoreland submitted a clemency application to Gov. Laura Kelly’s office. The request included letters of support from Lansing Warden Shannon Meyer, Sen. Randall Hardy, R-Salina, and Rep. John Alcala, D-Topeka....  Kelly’s office is in the process of reviewing the clemency request, spokeswoman Lauren Fitzgerald said.

I fully understand why many advocates for criminal justice reform who are eager to end mass incarceration are now quick to stress that we need to address unduly long sentences for violent crimes.  But I see these kinds of extreme drug sentencing cases and continue to stress that we still need to make a whole lot more progress on reform for so many non-violent crimes, too, while also recognizing that it will be hard to get a place like Kansas to be less harsh in response to violent crimes if state law still provides that "a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter."

Moreover, severe drug war attitudes are ultimately more enduring and perhaps even more problematic than even severe drug war laws.  That the prosecutor here is still eager to assert that such a long sentence for mere distribution of marijuana "was a fair sentence under the circumstances" showcases that many drug warriors are seemingly not inclined to rethink even the most severe weapons used to wage this unwinnable and damaging war. 

September 12, 2020 in Drug Offense Sentencing, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Friday, September 11, 2020

"The War on Drugs: Moral Panic and Excessive Sentences"

The title of this post is the title of this new article now available via SSRN and authored by Michael Vitiello.  Here is its abstract:

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs.  Responding to that panic, legislators have authorized severe sentences for drug offenses.  By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule.  Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic.  For example, it eroded Fourth Amendment protections during the War on Drugs.  Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs.

This article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes.  In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment.  There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense.   Whatever hope Solem created that courts might limit excessive sentences proved to be false.  Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences.  In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana.  In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine.  The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage.

Since the height of the War on Drugs, Americans have changed their views about drugs.  Significant majorities of Americans favor legalization of marijuana for medical and recreational use.  Many Americans favor a wholesale rethinking of drug policy.  Despite studies in the 1950s and 1960s, demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs.

This article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences.  The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense.  In turn, the gravity of an offense turns on its social harm and the culpability of the offender.  The Court upheld extreme drug sentences based on the view that drugs were a national scourge.  Moral panic led it to overstate the social harm and the culpability of drug offenders.  Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use. 

September 11, 2020 in Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 07, 2020

Reviewing how much and how little the FIRST STEP Act has achieved

Jacob Sullum has this great new Reason piece that spotlights key data from this recent US Sentencing Commission report on the first year under the FIRST STEP Act.  The full headline details the themes: "The FIRST STEP Act Has Reduced Prison Terms for More Than 7,000 People. While that's nothing to sneeze at, it is a modest accomplishment in the context of a federal prison system that keeps more than 150,000 Americans behind bars." I recommend the piece in full, and here are snippets (with links from the original):

During the first full calendar year in which the law applied, it resulted in shorter sentences for more than 4,000 drug offenders. While that is nothing to sneeze at, it is a modest accomplishment in the context of a federal prison system that keeps more than 150,000 Americans, including more than 68,000 drug offenders, behind bars....

In 2019, the USSC report says, 2,387 already imprisoned crack offenders qualified for shorter sentences under the FIRST STEP Act's retroactivity provision. The average reduction was 71 months, making the average sentence for this group 187 months (more than 15 years), down from 258 months (more than 21 years).... The second most significant FIRST STEP Act sentencing reform in 2019 (again, measured by the number of people affected), was its widening of the "safety valve" that allows low-level, nonviolent drug offenders to avoid mandatory minimums they otherwise would receive. The USSC reports that 1,369 defendants benefited from that expansion in 2019....

The law also expanded the "good time" credits that allow prisoners to be released early. Although the USSC report does not analyze the impact of that provision, the Justice Department reported last year that more than 3,100 prisoners had benefited from it. 

By the end of last year, then, more than 7,000 people either had been released from prison earlier than they otherwise would have been or were serving sentences that will end sooner than would have been the case before the FIRST STEP Act took effect. That is a meaningful accomplishment. Thousands of people will spend less time behind bars, and more time with their families, friends, and neighbors, thanks to this law, and that number will rise each year.

At the same time, the law's beneficiaries at this point represent less than 5 percent of the federal prison population, less than 11 percent of drug offenders in federal prison, and less than 10 percent of federal criminal cases each year. And while a crack offender who serves 15 years rather than 21 years in prison surely is better off, the reduced penalty is still draconian, especially if you think peaceful transactions involving arbitrarily proscribed intoxicants should not be treated as crimes to begin with.

Prior recent related posts:

September 7, 2020 in Data on sentencing, Drug Offense Sentencing, FIRST STEP Act and its implementation | Permalink | Comments (2)

Monday, August 31, 2020

"What We Got Wrong in the War on Drugs"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark Osler. Here is its abstract:

The War on Drugs is effectively over.  Drugs won.  This essay addresses some of the mistakes we made in that futile effort.  Allowing racism to motivate action and impede reform was a primary error.  So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. 

In whole, we largely addressed the narcotics trade as a moral failing rather than a market — and never got around to recognizing the size and shape of that market or to using market forces to control it.  Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

August 31, 2020 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, August 19, 2020

Lots and lots of federal drug charges resulting from Operation Legend, which is purportedly to "fight violent crime"

Six week ago, Attorney General William Barr announced the launch of operation legend via this press release that stressed the fighting of violent crime.  Here are excerpts from the July 8 DOJ press release (with my emphasis added): 

Attorney General William P. Barr announced the launch of Operation Legend, a sustained, systematic and coordinated law enforcement initiative across all federal law enforcement agencies working in conjunction with state and local law enforcement officials to fight the sudden surge of violent crime, beginning in Kansas City, MO. Operation Legend was created as a result of President Trump’s promise to assist America’s cities that are plagued by recent violence....

“President Trump has made clear: the federal government stands ready and willing to assist any of our state and local law enforcement partners across the nation responding to violent crime. Operation Legend will combine federal and local resources to combat the disturbing uptick in violence by surging federal agents and other federal assets into cities like Kansas City, a city currently experiencing its worst homicide rate in its history,” said Attorney General Barr. “The Department’s Operation Legend is named in honor of one of Kansas City’s youngest victims, four-year old LeGend Taliferro who was shot in the face while sleeping in his bed.  LeGend’s death is a horrifying reminder that violent crime left unchecked is a threat to us all and cannot be allowed to continue.”

Today via this press release, AG Barr "announced updates on Operation Legend," and here are excerpts:

Since the operation’s launch, there have been more than 1,000 arrests, including defendants who have been charged in state and local courts.  Of those arrests, approximately 217 defendants have been charged with federal crimes.  These numbers exclude Indianapolis, whose operation was just announced last Friday. In addition, nearly 400 firearms have been seized by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The Attorney General launched the operation on July 8, 2020, as a sustained, systematic and coordinated law enforcement initiative in which federal law enforcement agencies work in conjunction with state and local law enforcement officials to fight violent crime.... Launched first in Kansas City, MO., on July 8, 2020, the operation was expanded to Chicago and Albuquerque on July 22, 2020, to Cleveland, Detroit, and Milwaukee on July 29, 2020, to St. Louis and Memphis on Aug. 6, 2020, and to Indianapolis on Aug. 14, 2020. A breakdown of the federal charges in each district, with the exception of Indianapolis, is below.

I am please to see this kind of accounting from DOJ about this operation, but when looking through the breakdown of the federal charges, it is remarkable how for DOJ the effort to "fight violent crime" seems to involve making a whole lot of drug charges:

Kansas City: "Forty-three defendants have been charged with federal crimes ... 17 defendants have been charged with drug trafficking"

Chicago: "Sixty-one defendants have been charged with federal crimes ... 26 defendants have been charged with narcotics-related offenses"

Albuquerque: "Sixteen defendants have been charged with federal crimes ... Six defendants have been charged with conspiracy to distribute controlled substances; Four defendants have been charged with distribution of controlled substances; Six defendants have been charged with possession with intent to distribute a controlled substance;"

Cleveland: "Thirty-two defendants have been charged with federal crimes ... 22 defendants have been charged with federal drug trafficking charges"

Detroit: "Twenty-two defendants have been charged with federal offenses ... Two defendants have been charged with possession with the intent to distribute controlled substances"

Milwaukee: "Eleven defendants have been charged with federal crimes ... Five defendants have been charged with possession with intent to distribute narcotics"

St. Louis: "Twenty-five defendants have been charged with federal crimes ... 21 defendants have been charged with drug trafficking offenses"

Though it is hard to do an exact accounting based on the DOJ reporting, it seems like roughly half of the federal charges here involve drug trafficking, not actual violent crimes.  (In addition, the vast majority of all the  other federal charges involve illegal gun possession, not actual violent crimes.)  I presume DOJ would defend its work here by asserting that drug trafficking is inherently violent or by contending that disrupting the drug trade via these arrests serves to get people prone to violence off the streets.  But I still find it quite jarring and quite telling that a federal initiative developed and promoted as a means to fight violent crime ends up bringing primarily drug trafficking charges in city after city.

August 19, 2020 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, August 09, 2020

Oregon drug decriminalization initiative would produce "significant reductions in racial/ethnic disparities" according to state commission

Download (12)As reported in this local press piece, headlined "Oregon Criminal Justice Commission: Initiative Petition 44 Will Nearly Eliminate Racial Disparities for Drug Arrests, Convictions," a notable state commission has reported that a notable state ballot initiative will have a notable impact on equity in the criminal justice system. Here are the basics from the press piece:

Racial disparities in drug arrests will drop by 95% if Oregon voters pass a drug treatment and decriminalization measure in November.  That’s according to a new, independent government research report written by the Oregon Criminal Justice Commission.  Oregon voters will see a summary of the report in the voter pamphlet that the Oregon Secretary of State mails to every registered Oregon voter in November.

In addition to a reduction in arrest disparities, conviction disparities would be “narrowed substantially” if Initiative Petition 44 passes, the report said, and overall convictions would fall.  For example, convictions of Black and Indigenous Oregonians would drop by 94%....

The analysis by the Oregon Criminal Justice Commission is the first one ever prepared for a ballot measure.  Lawmakers have had the ability to ask for such an analysis since 2014 and did this year after being urged to do so by the More Treatment campaign, which supports Initiative Petition 44....

Initiative Petition 44, which will soon get a ballot measure number, changes Oregon’s approach to drugs.  The initiative would expand access around the state to drug addiction treatment and recovery services, paid for with a portion of taxes from legal marijuana sales. In addition, the measure decriminalizes low-level drug possession.  It does not legalize drugs.

About 8,900 Oregonians are arrested every year in cases where simple drug possession is the most serious offense, according to the latest numbers from the Oregon Criminal Justice Commission.  That’s the equivalent of about one arrest an hour.  Black and Indigenous Oregonians are disproportionately targeted....

In addition to decriminalizing drug possession, Initiative Petition 44 would specifically provide funding for treatment, peer support, housing, and harm reduction. Marijuana tax revenue that’s in excess of $45 million a year would help pay for it.  Oregon expects to collect roughly $284.2 million in marijuana tax revenue during the 2021-2023 biennium, or roughly $140 million a year.

Initiative Petition 44 has received more than 70 endorsements from organizations across the state, including the Coalition of Communities of Color, NAACP Portland, Eugene-Springfield NAACP, Unite Oregon, Central City Concern, the Confederated Tribes of Grand Ronde and more.  The MoreTreatment campaign to pass Initiative Petition 44 does not face any organized opposition.

The full seven-page analysis by the Oregon Criminal Sentencing Commission is available at this link, and here is part of the conclusion:

Overall, if IP 44 were to pass, the Oregon Criminal Justice Commission estimates that approximately 1,800 fewer Oregonians per year would be convicted of felony PCS [possession of controlled substances]  and nearly 1,900 fewer Oregonians per year would be convicted of misdemeanor PCS.  Prior research suggests this drop in convictions will result in fewer collateral consequences stemming from criminal justice system involvement (Ewald and Uggen, 2012), which include the reduced ability to find employment, reduced access to housing, restrictions on the receipt of student loans, inability to obtain professional licensure, and others.

The CJC estimates that IP 44 will likely lead to significant reductions in racial/ethnic disparities in both convictions and arrests....

Similarly, it is estimated that disparities in arrests for PCS would fall as well. If arrests follow the same trends as were estimated for convictions, then the overall number of PCS arrests would fall from just over 6,700 to 615. In this case, the significant overrepresentation of Black Oregonians as measured by the RDR among those arrested for PCS would fall substantially, being reduced by nearly 95 percent. In addition, Native American Oregonians would go from being overrepresented, to underrepresented compared to white individuals.

August 9, 2020 in Data on sentencing, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Saturday, August 01, 2020

Noticing problems with crack sentence reduction retroactivity, especially when certain judges are discretionarily disinclined

The New York Times has this effective new article highlighting the ugly underbelly of the FRIST STEP Act's efforts to make sure the Fair Sentencing Act's reduction of crack sentences was fully retroactive.  The headline and subheadline of the piece serves as a summary: "Law to Reduce Crack Cocaine Sentences Leaves Some Imprisoned: Critics say the First Step Act is being applied too arbitrarily by judges who are taking a hard line when it comes to revisiting nonviolent drug sentences."  Here are excerpts from a piece worth reading in full:

By and large, the First Step Act has met its goal of reducing federal sentences for nonviolent drug offenders, addressing a longstanding disparity in which crack cocaine convictions in particular led to far harsher penalties than other drug offenses and disproportionately increased imprisonment of Black men.

Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively.  As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible.

But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release.  “It’s like the luck of the draw,” said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases.  “You’ve got people sitting in prison during a pandemic, and it’s not supposed to come down to who your judge is.  It’s supposed to come down to the law.”

The simple enactment of the bill was no guarantee for inmates.  This provision of the bill did not mandate that the judges must resentence eligible offenders; Congress specified that “nothing in this section shall be construed to require a court to reduce any sentence.”...

The section of the act that governs resentencing for crack cocaine convictions is just four sentences long.  It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine.  Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision.

Many public defenders — who handle most of these applications — in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a “godsend” for many inmates.  He added that judges varied as to the importance they placed on the original offense or the inmate’s behavior behind bars.  “You give it to different judges, they’re going to come up with different opinions,” Mr. Small said.  “It’s frustrating.”

August 1, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Monday, July 20, 2020

"Forgotten by the Fair Sentencing Act and the First Step Act: Federal Methamphetamine Sentencing Reform"

The title of this post is the title of this new paper recently posted on SSRN and authored by Quincy Ferrill.  Here is its abstract:

This paper explores the issue of sentencing guidelines based on outdated premises and unfair treatment and the potential impacts of drug sentencing laws and enhancements not based on empirical data.  To address this problem, this paper proposes a bill, similar to the First Step Act, to both retroactively and prospectively lessen the effect of these capricious drug sentencing guidelines.

July 20, 2020 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Wednesday, July 08, 2020

"Retroactivity & Recidivism: The Drugs Minus Two Amendment"

Cover_Drugs-Minus-TwoThe title of this post is the title of this notable new US Sentencing Commission report.  A summary of the report is provided on this USSC webpage and provides these basics:

Summary

This publication analyzes recidivism rates among drug offenders who were released immediately before and after retroactive implementation of the 2014 "Drugs Minus Two" Amendment.

The report tracked the recidivism rate of two study groups:

  • Retroactivity Group: 7,121 offenders who received sentence reductions through retroactive application of the Drugs Minus Two Amendment and who were released early from October 30, 2015, to May 31, 2016.
  • Comparison Group: 7,132 offenders who would have been eligible for sentence reductions through retroactive application of the Drugs Minus Two Amendment but were released between May 1, 2014, and October 29, 2015, having served their full sentences before the Drugs Minus Two Amendment could be retroactively applied

Findings 

The Commission's report aims to answer the research question, "Did the reduced sentences for the Retroactivity Group result in increased recidivism?"  The Commission found the following:

  • There was no statistically significant difference in the recidivism rates of offenders released early pursuant to retroactive application of the Drugs Minus Two Amendment and a comparable group of offenders who served their full sentences.
  • This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

Interestingly, though apparently not reaching a level of statistical significance, the Sentencing Commission's data actually show that the group who received reduced sentences had a lower rate of recidivism.  From the Key Findings at page 6 of the full report (with my emphasis added):

There was no statistically significant difference in the recidivism rates of the Retroactivity Group (offenders who were released on average 37 months early through retroactive application of the Drugs Minus Two Amendment) and the Comparison Group (offenders who would have been eligible for retroactivity but had served their sentences before retroactivity took effect). Over a three-year period following their release from prison, the Retroactivity Group had a recidivism rate of 27.9 percent compared to 30.5 percent for the Comparison Group. This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

The similarity in the recidivism rates of the Retroactivity Group and the Comparison Group held true across all drug types. Among offenders convicted of offenses with the same primary drug type — Powder Cocaine, Crack Cocaine, Heroin, Marijuana, Methamphetamine, and Other Drugs — offenders in the Retroactivity Group had similar recidivism rates to offenders in the Comparison Group, although the recidivism levels varied by drug type. The highest rates were observed among Crack Cocaine offenders (35.1% in the Retroactivity Group and 37.5% in the Comparison Group) and the lowest rates among Powder Cocaine offenders (19.5% in the Retroactivity Group and 22.3% in the Comparison Group).

I am quite inclined to embrace the USSC's assertion that the exercise of wise judicial discretion in deciding who should get the benefit of retroactive implementation of the 2014 "Drugs Minus Two" Amendment explains why recidivism rates were relative low for those defendants who received reduced sentences. Among other benefits of this conclusion, it should make Congress and the USSC ever more confident that they can safely (and should as a matter of fairness and justice) make any any all reduced sentences fully retroactive (subject to discretionary judicial review upon implementation).

July 8, 2020 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, July 07, 2020

Highlighting just one way that, even after the FIRST STEP Act, "Justice Still Eludes Crack Offenders"

Sarah E. Ryan has this notable new Crime Report commentary headlined simply "Why Justice Still Eludes Crack Offenders." I recommend the whole piece, and here are excerpts:

In early 2007, Carl Smith sold 1.69 grams of crack, less than half a teaspoon.  He also sold a teaspoon of powder cocaine.  A New Hampshire federal judge sentenced him to seventeen-and-a-half years imprisonment, the lowest end of the sentencing guidelines recommendation.

Last spring, Smith sought a sentence reduction under the First Step Act.  The district court denied the request because he was convicted under a statutory subsection unaffected by the new law. In essence, he had sold too little crack to go free.  According to an early 2020 analysis by the U.S. Sentencing Commission, the New Hampshire district courts granted just four sentence reductions under the First Step Act.  The district of Rhode Island granted four times more reductions; the district of Connecticut granted five times as many.

Nationally, the average sentence reduction was 71 months.  As a result, many defendants had served their time and could be released from incarceration.  But not Carl Smith. He remained locked up during a pandemic.  He appealed, arguing that the First Step Act covered his conviction.

After analyzing more than 500 First Step Act cases, including 90 relevant circuit court opinions, I know two things: this area of law remains in disarray and the circuit courts have largely dodged the tough issues.  They remain complicit in a decades-old mass incarceration scheme.

The now-familiar history of the crack laws omits one key fact: Congress knew early on that the drug laws were disproportionately affecting Black defendants.... In 1995, the Sentencing Commission told Congress that Black defendants accounted for nearly 90 percent of crack cocaine convictions and that most of their customers were white.  In 1996, the Bureau of Justice Statistics (BJS) reported the changing nature of the federal prison population using bold-faced sub-headers such as: “An increasing percentage of the Nation’s prisoners are black or Hispanic.”  In 1999, the BJS reported that the length of federal prison sentences had increased 40 percent. 

By the mid-1990s, lawmakers understood that dealers like Carl Smith were serving prison terms usually reserved for second-degree murder, or intentional murder demonstrating an extreme indifference to human life.  Yet Congress provided no relief, for decades.

In 2010, Congress raised the quantity necessary for future statutory minimum sentences in the Fair Sentencing Act; the law did not help defendants sentenced at the height of the drug war.  A few thousand people remained incarcerated under the old crack laws.  Their only hope was an historic reform amounting to an admission of Congressional guilt. The First Step Act was that law.  A bipartisan coalition heralded the First Step Act as the end of the draconian drug laws.  The Act gave sitting judges the authority to reopen the old crack cases and impose more appropriate sentences.... The intent of the law was clear, but some judges wavered.

There are two plausible ways to read the resentencing section — section 404 — of the First Step Act: as a small fix to the Fair Sentencing Act of 2010 or a broad mandate to rectify thousands of unjust sentences.  The broad reading is historically, legally and morally correct.  But hundreds of hearings in, the nation’s district courts remain divided on the law’s most basic tenets, like which defendants can be resentenced or what Section 404 empowers judges to do.

Some judges apply Section 404 narrowly.  A subset dismiss cases involving too little or too much crack without a review of the other facts.  Still others review all cases implicating a Fair Sentencing Act statute, but only to perform a new mathematical calculation.  They do not consider a defendant’s post-sentencing conduct or intervening changes in the law, even favorable state and federal supreme court rulings.  Their narrow interpretations of the law unnecessarily depress the length of sentence reductions.

Other judges construe Section 404 broadly.  They view the First Step Act as a gateway to relief.  Some find that they can revisit the sentences of small-time dealers or inmates serving hybrid sentences for interconnected drug and weapons crimes.  Some believe that they may consider a defendant’s good conduct, prison coursework and recent high court rulings.  Broad-view judges find that Congress empowered them to mitigate the damage of the old crack laws.  Their proof? The text of the law, including the word “impose” as a mandate to issue an independent sentence — and the testimony of a dozen or more senators, of both parties, characterizing the First Step Act as redress for the old drug laws.

Recently, the First Circuit adopted a broad view in Carl Smith’s case [opinion here]. That appellate opinion is reason for hope that the circuit courts will raze the remains of the old crack laws.  This summer, the appellate courts should adopt a broad reading of the First Step Act.  That reading should require sitting judges to issue meaningful sentence reductions, including ‘timed served’ in many cases.

And, it should hold sitting judges accountable for the continued incarceration of non-violent drug dealers who have served a decade or more.  Amidst global protests for freedom, liberation and justice for Black citizens, and a raging pandemic, the courts must fully enact the First Step Act as Congress intended.

I am pleased to see this new commentary calling out lower courts for not giving full effect to remedial aspects of the FIRST STEP Act.  But this analysis should not leave out the problematic role of the Justice Department.  I surmise that DOJ has consistently argued for narrow and limiting approaches to the application of Section 404.  Decades ago, DOJ could reasonably contended that its arguments for severe application of federal sentencing laws were consistent with congressional intent.  Now, DOJ arguments for severe application of federal sentencing laws often clearly fly in the face of congressional intent.

July 7, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)