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)

Some summer criminal justice highlights from Marijuana Law, Policy & Reform

It has been far too long since I thought to do a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, though that is certainly not because there has been any shortage of interesting COVID-19 or social justice issues arising these days at the intersection of marijuana policy and criminal justice policy.   Rather than try to do a comprehensive review, I will be content to stoplight some favorites with an emphasis on criminal-justice-related stories in this abridged list of posts of note from recent months at MLP&R:

July 7, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (0)

Friday, July 03, 2020

"Proposition 47’s Impact on Racial Disparity in Criminal Justice Outcomes"

The title of this post is the title of this notable new and timely report from the Public Policy Institute of California.  Here is its "Summary":

While the COVID-19 pandemic has forced changes to correctional systems and law enforcement’s interactions with the community, widespread protests focused on the deaths of African Americans in police custody have intensified concern about racial and ethnic disparities in our criminal justice system.  In recent years, California has implemented a number of significant reforms that were not motivated by racial disparities but might have narrowed them in a number of ways. In this report, we extend our previous arrest work to examine the impact of Proposition 47, which reclassified a number of drug and property offenses from felonies to misdemeanors, on racial disparities in arrest and jail booking rates and in the likelihood of an arrest resulting in a booking.

While significant inequities persist in California and elsewhere, our findings point to a reduction in pretrial detention and a narrowing of racial disparities in key statewide criminal justice outcomes.

  • After Prop 47 passed in November 2014, the number of bookings quickly dropped by 10.4 percent.  As a result, California’s use of pretrial detention has declined.
  • Prop 47 also led to notable decreases in racial/ethnic disparities in arrests and bookings.  The African American–white arrest rate gap narrowed by about 5.9 percent, while the African American–white booking rate gap shrank by about 8.2 percent.  Prop 47 has not meaningfully changed the disparities in arrest and booking rates between Latinos and whites, which are still only a small fraction of the African American–white gap.
  • The narrowing of African American–white disparities has been driven by property and drug offenses.  The gap in arrests for these offenses dropped by about 24 percent and the bookings gap narrowed by almost 33 percent.  Even more striking, African American–white gaps in arrest and booking rates for drug felonies decreased by about 36 percent and 55 percent, respectively.
  • The likelihood of an arrest leading to a jail booking declined the most for whites, but this is attributable to the relatively larger share of white arrests for drug offenses covered by Prop 47. When we account for arrest offense differences, the decreases in the likelihood of an arrest being booked are similar across race and ethnicity.

We also looked at the cumulative impact of reforms and prison population reduction measures in California since 2009 on racial disparities in incarceration.  We found that the sizable reduction in the overall incarceration rate produced by these efforts has led to a narrowing of racial disparities in the proportion institutionalized on any given day.  In particular, the African American–white incarceration gap dropped from about 4.5 percentage points to 2.8 percentage points, a decrease of about 36 percent.

In addition to meaningfully reducing racial disparities in key criminal justice outcomes, the reclassification of drug and property offenses led to significant decreases in arrests and bookings, and hence pretrial detention. These decreases have the potential to reduce and/or redirect the use of public resources.  However, more work is needed.  Given evidence that the reforms have led to some increases in property crime, it is important for policymakers and practitioners to identify effective programs and policies that can reduce recidivism and maintain public safety while also continuing to address racial disparities.

July 3, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Tuesday, June 30, 2020

"Judicial Authority under the First Step Act What Congress Conferred through Section 404"

The title of this post is the title of this notable new article authored by Sarah Ryan now available via SSRN. Here is its abstract:

The First Step Act of 2018 promised relief to inmates serving disproportionately long sentences for cocaine base distribution. Section 404, the focus of this article, seemed straight-forward.  But in the spring and summer of 2019, district judges began reviewing § 404 cases and reaching dissonant results.  Appeals followed, focused on four questions of judicial authority: (1) Who may judges resentence?; (2) May judges engage in plenary resentencing or merely sentence reduction?; (3) May judges resentence all concurrent criminal convictions or only crack cocaine convictions?; and (4) Must judges adopt the operative drug quantity from the original sentencing?

Today, the law of § 404 remains incomplete in every circuit.  This article reviews the legislative history, text, and legal context of § 404.  It finds that Congress intended broad judicial authority in § 404 resentencings.

June 30, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, June 07, 2020

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!) Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimumsEven before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

June 7, 2020 in Collateral consequences, Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Thursday, June 04, 2020

"The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction"

The title of this post is the title of this notable new article now available via SSRN authored by Erica Zunkel and Alison Siegler. Here is its abstract:

While state drug law reform is moving apace, federal drug law reform has moved much more slowly.  Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years.  But Congress has not acted.  As a result, the federal system continues to single out drug offenses for harsh treatment at the front end — the bail stage — and the back end — the sentencing stage — of a case.

This article examines the judiciary’s crucial role in federal drug law reform at the front and back ends of a drug case.  On the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention in drug cases and giving little, if any, weight to the Bail Reform Act’s presumption of detention at the detention hearing stage.  Data shows that the drug presumption is over-broad and does a poor job of determining who is a risk of flight or a danger to the community.  At the back end, judges should issue categorical policy disagreements with the drug sentencing guideline and the career offender sentencing guideline under the Supreme Court’s rationale in Kimbrough v. United States.  These guidelines are not based on empirical evidence and national experience, and therefore do not exemplify the Sentencing Commission’s “exercise of its characteristic institutional role.”  At both ends, judges should emphasize the evidence that the drug presumption, the drug sentencing guideline, and the career offender sentencing guideline are flawed.  While these actions are not a cure for Congress’ inaction, they send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.

June 4, 2020 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, May 26, 2020

Noticing COVID impacts through drug supply chains and enforcement

I doubt there is a single area of life not impacted by the global pandemic, and thus these recent next stories about impacts on the drug trade and enforcement are not shocking though still interesting:

The NPR story summarizes some of the findings in this big new "Research Brief" coming from the United Nations titled "COVID-19 and the drug supply chain: from production and trafficking to use."

May 26, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice | Permalink | Comments (1)

Thursday, May 21, 2020

"Evidence-Based Sentencing Reform: The Right Policy For Ohio"

The title of this post is the title of this short white paper authored by Andrew Geisler of The Buckeye Institute.  Here is how it starts and concludes:

Senate Bill 3 proposes commonsense and comprehensive reforms to Ohio drug sentencing law.  The bill seeks to hold those in the business of selling drugs accountable for their conduct, while ensuring those convicted of nonviolent drug possession get the treatment that they need.  To do that, the bill reclassifies some offenses and changes the drug quantities required to convict for others. The bill relies upon extensive data-driven research on the habits of drug users and dealers, and adopts drug-quantity thresholds largely consistent with the Ohio Criminal Justice Recodification Committee’s 2017 recommendations.  Modeled on the committee’s approach and recommendations, Senate Bill 3 takes significant strides toward making Ohio’s drug-sentencing laws more effective, flexible, and just....

Senate Bill 3 reforms Ohio’s drug sentencing laws without making it easier to traffic drugs.  The bill takes a commonsense, evidence-based approach to ensure that Ohio law adequately reflects the complex nature of addiction and drug trafficking by providing treatment for those possessing drugs and by continuing to hold drug traffickers accountable for their crimes.

Prior related recent post:

May 21, 2020 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 13, 2020

Members of Congress submit amicus brief urging Ninth Circuit to rule FIRST STEP Act provisions lowering mandatory minimums apply at a resentencing

In this post way back in 2018 just a few days after the FIRST STEP Act became law, I took note of the notable provisions in the Act which expressly addressed just which types of offenders should get the benefit of the Act's new statutory sentencing provisions if their cases were already in the criminal justice pipeline.  In that post, I complimented Congress for addressing these issues, but I also noted that some matters left unclear such as whether "a defendant already sentenced earlier in 2018 [who has] his sentence reversed on some other ground and now he faces resentencing [could] get the benefit of any new provisions of the FIRST STEP Act upon resentencing."

Via this new press release, I now see that this resentencing question is before the Ninth Circuit and that a notable group of Senators are seeking to ensure the defendant gets the benefit of the FIRST STEP Act at his resentencing.  Here is the text of the press release:

U.S. Senators Dick Durbin (D-IL), Chuck Grassley (R-IA), and Cory Booker (D-NJ), lead authors and sponsors of the First Step Act — landmark criminal justice reform legislation — today submitted a bipartisan Amicus Brief to the Ninth Circuit Court of Appeals in United States of America v Alan L. Mapuatuli, a case related to the reduction of the second strike and third strike drug mandatory minimums.

The bipartisan Brief argues that Congress intended the First Step Act (FSA) to apply at post-FSA sentencing hearings, including when a defendant is before a court for sentencing after his or her initial sentence was vacated on appeal.  Congress intended to cover these cases by stating that the FSA applies “if a sentence for the offense has not been imposed” as of the FSA’s date of enactment.  However, the Justice Department is litigating the contrary position in United States of America v Alan L. Mapuatuli.

The Members wrote: “… the interpretation advanced by the Executive Branch and adopted by the district court in this case is contrary to Congress’s language and intent.  Reduced to its simplest form, that interpretation assumes that Congress intended to give legal effect to sentences that otherwise are void.  That assumption finds no support in the statutory text, contradicts the fundamental considerations that motivated Congress to enact the First Step Act, and produces inequitable outcomes that undermine the fairness and legitimacy of our criminal justice system.  That unquestionably is not what Congress intended.  For these reasons, amici respectfully submit that the district court’s judgment should be vacated and the case remanded for resentencing in conformity with the First Step Act.”

The full 20-page amicus brief in this matter is available at this link, and I applaud the Senators and their lawyers for urging the Ninth Circuit to ensure that the FIRST STEP Act is given the broad reach that it seems Congress intended and that its text reasonably supports.

May 13, 2020 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 09, 2020

Can the coronoavirus finally get Ohio's bipartsan criminal justice reforms over the finish line?

The question in the title of this post is prompted by this new Fox News piece headlined "Ohio lawmakers hope for bipartisan reform of prison system stressed by COVID-19." Here are excerpts from a long piece:

Ohio lawmakers, lobbyists and researchers of various political stripes are finding a common cause in prison reform.  Bipartisan efforts to reform the troubled system have preceded the outbreak of COVID-19, but the virus has thrown the need for change into stark relief.

Across Ohio’s prison system, more than 4,300 people have tested positive for COVID-19 and at least 40 inmates and two staff members have died.  The Ohio Department of Rehabilitation and Correction (ODRC) has a current inmate population of nearly 50,000, about 10,000 above capacity.  Already cramped living conditions have been exacerbated and stressed by a virus that has forced 39,000 inmates into quarantine, according to ODRC data.

The prison system has long been scrutinized by the left for its overcrowding problem.  Now, with the system wracked by a deadly virus, conservative lawmakers are turning a critical eye to the status quo. “When you have organizations across the political and ideological spectrum saying, oftentimes, identical things about mass incarceration – it makes people take notice,” said Gary Daniels, a lobbyist with the ACLU of Ohio....

Two such displays are House Bill 1 and Senate Bill 3, which would allow for intervention in lieu of conviction and reform drug sentencing laws, respectively, The bills contain changes widely agreed upon as common-sense reforms to Ohio's criminal justice system. Both would put fewer people behind bars for minor criminal infractions, allowing for rehabilitation and community monitoring for crimes that don’t merit incarceration....

Still, bipartisan acknowledgment of a problem doesn’t always prompt bipartisan legislative action. Solutions can languish in the statehouse for months while lawmakers debate the finer points. Sometimes party lines won’t be moved....

Cooperation between think tanks and policy advocacy organizations can be a prelude to lawmakers taking up a cause in committee. Rep. Diane Grendell, a Republican lawmaker from northern Ohio and former Court of Appeals judge, sits on the Ohio House Criminal Justice committee and anticipates seeing prison reform enacted reasonably soon. “We have failed in our prison system,” Grendell said. “We have more prisoners than we have jails for, we keep passing more and more laws, we have to really clean it up. And I think all sides agree on that. We just have too many people in prisons.”...

The Buckeye Institute has long lobbied for fiscally conservative policies.  Recently, those policies have included criminal justice reform like S.B. 3. Lawson said prisons are the state’s third-largest budget item behind Medicaid and education. The Buckeye Institute has backed prison reform bills alongside liberal groups like Policy Matters Ohio and the libertarian Americans for Prosperity....

Ohio Rep. Erica Crawley, a Democrat from southeastern Columbus, isn’t as hopeful about a new era of bipartisanship in Ohio, though she does recognize the likelihood of criminal justice reform. “The pandemic has really brought those concerns and conversations to the forefront,” she said. “… We are having a really substantive conversation about rehabilitation. Obviously, we can’t lock inmates up and get out of this drug problem.”

For years, Ohio has been at the center of the nation’s opioid epidemic, with the state prison and county jail systems bearing the brunt of the resulting increase in incarceration.... Crawley said current reform efforts are good, but don’t go far enough. She said the bills under consideration wouldn’t do enough to mitigate the prison population enough to matter if the state were struck with a future pandemic.

“Right now, we have over 15,000 inmates who are considered low-level, nonviolent offenders,” Crawley said. “A lot of those are drug convictions. S.B. 3 would still allow people to be incarcerated for small amounts of drugs.  Until we have consensus and local court policy guidelines, we’re going to continue to see the same problems. If we have another pandemic, we’re going to be in the same position.”

I want to be optimistic that Ohio's General Assembly might get both House Bill 1 and Senate Bill 3 to the desk of the Governor in short order.  But these bills have been "stuck" in the Ohio GA for quite some time, and Ohio's prison population has been way over capacity for even longer.  And despite a lot of public policy groups on both sides of the aisle supporting reform, many of the anti-reform usual suspects (e.g., prosecutors and police) have so far kept these relatively modest proposed reforms from becoming law.  I sure want to believe that the COVID crisis will get the Ohio GA to finally get these reforms enacted, but I never count any sentencing reform chickens before they are fully hatched.

May 9, 2020 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Wednesday, April 29, 2020

From drug sentences to death sentences: documenting arbitrary and capricious drug war casualties

Many millions, perhaps tens of millions of persons, in the United States are involved in some federally illegal drug activity.  But only select few, roughly 20,000 per year, are subject to federal prosecution and sentencing.  The tiny percentage of drug offenders subject to federal prosecution are not quite randomly selected, but exactly who and how offenders are brought into the federal system often seems to have more to do with federal prosecutorial priorities than with offending behaviors.  (This US Sentencing Commission document shows that federal cocaine and meth cases were still more commonly sentenced than opioid cases through the height of the opioid epidemic.   Notably, those selected for federal prosecution are disproportionate persons of color: in Fiscal Year 2019, as in most prior years, only about one quarter of persons prosecuted for federal drug crimes are white.)

For those sentenced to federal prison, the vicissitudes of federal drug prosecution are now combined with the coronavirus pandemic and the uncertainties of just who will get sick from the virus.  Sadly, for more than a few, the result has been an untimely death.  Of course, every unnecessary death by illness for an incarcerated person is a tragic event; but the recent death of the first female federal inmate (discussed here) struck me as an especially arbitrary and capricious drug war casualty.  And it inspired me to go though the BOP press releases about COVID inmate deaths to see how many involve drug offenders. Here is what I found (with quote about offense drawn from BOP press release):

Patrick Jones (died March 28: "49 year-old male who was sentenced in the Western District of Texas to a 324- month sentence for Possession with Intent to Distribute 425.1 grams of crack cocaine within 1000 ft. of a junior college") 

Nicholas Rodriguez (died April 1: "43 year-old male who was sentenced in the Northern District of California to a 188-month sentence for Conspiracy to Distribute a Mixture and Substance Containing a Detectable Amount of Methamphetamine and Possession with Intent to Distribute a Mixture and Substance Containing a Detectable Amount of Methamphetamine")

Woodrow Taylor (died April 2: "53 year-old male serving a 60 month sentence for Conspiracy to Possess with Intent to Distribute 500 grams or more of Cocaine")

David Townsend (died April 2: "66 year-old male who was sentenced in the Northern District of Georgia to a 240-month sentence for Possession With Intent to Distribute at least 100 kg. of Marijuana, at least 500 gm. of Methamphetamine Mixture, and at least 5 gm. of Methamphetamine Actual")

Margarito Garcia-Fragoso (died April 2: "65 year-old male serving 126 month sentence for Possession with Intent to Distribute more than 500 grams of cocaine and Possession of a Firearm in Furtherance of Drug Trafficking Crime")

Gary Edward Nixon (died April 12: "57 year-old male who was sentenced in the Eastern District of North Carolina to a 155-month Supervised Release Violation Term with new criminal conduct of Conspiracy to Distribute With Intent to Distribute More Than 5 Grams of Cocaine Base (Crack). The original offense conduct was Conspiracy to Possess With Intent to Distribute 100 Grams or More of Heroin and Possession With Intent to Distribute a Quantity of Heroin")

Alvin Turner (died April 13: "43 year-old male sentenced in the Eastern District of Michigan to a 180 month term for Conspiracy to Possess With Intent to Distribute and to Distribute Cocaine")

Michael Fleming (died April 19: "59 year-old male who was sentenced in the District of Wyoming to a 240-month sentence for Conspiracy to Possess with Intent to Distribute and to Distribute
Methamphetamine")

Arnoldo Almeida (died April 22: "a 61 year-old male who was sentenced in the Western District of Texas to a 188-month sentence for Conspiracy to Possess with Intent to Distribute a Controlled Substance Containing a Detectable Amount of Cocaine")

Oscar Ortiz (died April 24: "78 year-old male who was sentenced in the District of Idaho to a 324-month sentence for Conspiracy to Distribute Methamphetamine and/or Marijuana, Drug
Possession/Distribution, and Misprison of a Felony")

Donnie Grabener (died April 25: "65 year-old male who was sentenced in the District of Louisiana to a 120-month sentence for Conspiracy to Distribute Methamphetamine and Felon in Possession of a Firearm")

Andrea Circle Bear (died April 28: "30 year-old female who was sentenced in the District of South Dakota to a 26-month sentence for Maintaining a Drug Involved Premises")

William Walker Minto (died April 28: "73 year-old male who was sentenced in the Eastern District of Tennessee to a 240-month term for Conspiracy to Distribute and Possess With Intent to Distribute 1,000 Kilograms or More of Marijuana")

April 29, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

The sad details of the first woman in federal prison to die from COVID-19

The federal Bureau of Prisons issued this press release last night, titled "Inmate Death at FMC Carswell," which reports these sad details:

On Friday, March 20, 2020, inmate Andrea Circle Bear was transported by the United States Marshal Service from Winner City Jail, Winner, South Dakota to FMC Carswell in Fort Worth, Texas.  Per the Bureau's current COVID-19 procedures, Ms. Circle Bear was immediately placed on quarantine status at FMC Carswell.

On Saturday, March 28, 2020, Ms. Circle Bear was evaluated by FMC Carswell Health Services staff and transported to the local hospital due to potential concerns regarding her pregnancy. After evaluation by the local hospital staff, Ms. Circle Bear was discharged the same day and transported back to FMC Carswell.  On Tuesday, March 31, 2020, Ms. Circle Bear was seen by FMC Carswell Health Services staff for a fever, dry cough, and other symptoms, and was transported to the local hospital for further treatment, evaluation, and placed on a ventilator.

On Wednesday, April 1, 2020, Ms. Circle Bear’s baby was born by cesarean section. On Saturday, April 4, 2020, Ms. Circle Bear was confirmed positive for COVID-19.  On Tuesday, April 28, 2020, Ms. Circle Bear, who had a pre-existing medical condition which the CDC lists as risk factor for developing more severe COVID-19 disease, was pronounced dead by hospital staff.

Ms. Circle Bear was a 30 year-old female who was sentenced in the District of South Dakota to a 26-month sentence for Maintaining a Drug Involved Premises.  She had been in custody at FMC Carswell since March 20, 2020.

More details on what led to this tragic state of affairs can be found via this January 2020 press release from the US Attorney's Office forthe District of South Dakota titled "Eagle Butte Woman Sentenced for Maintaining a Drug Involved Premises":

United States Attorney Ron Parsons announced that an Eagle Butte, South Dakota, woman convicted of Maintaining a Drug Involved Premises was sentenced on January 14, 2020, by Chief Judge Roberto A. Lange, U.S. District Court.

Andrea Circle Bear, a/k/a Andrea High Bear, age 29, was sentenced to 26 months in federal prison, followed by 3 years of supervised release, and a special assessment to the Federal Crime Victims Fund in the amount of $100. Circle Bear was indicted by a federal grand jury on March 12, 2019. She pled guilty on October 7, 2019.

The conviction stemmed from several incidents in April of 2018, when Circle Bear unlawfully and knowingly used and maintained a place for the purpose of distributing methamphetamine on the Cheyenne River Sioux Indian Reservation.

“It is federal crime to knowingly allow a drug dealer to operate out of your home, apartment, or place of business,” said U.S. Attorney Ron Parsons. “Don’t let yourself or your property get mixed up in the world of illegal drugs. It ends badly.”...

Circle Bear was immediately remanded to the custody of the U.S. Marshals Service.

Though I do not know just how far along Ms. Circle Bear was on April 1 when her baby was delivered by cesarean section, I think it is a near certainty that everyone had know by the time of her sentencing in mid January 2020 that she was pregnant.  I also do not know if anyone thought to ask in January 2020 about possibly delaying the start of her prison term until she gave birth, but it is so very telling (and here proved so very deadly) that, even with a seemingly low-level non-violent drug offense, there was apparently no effort to accommodate a woman in the second trimester of her pregnancy.

Moving forward on the timeline, I do not know why it took two months to transfer Ms. Circle Bear from a South Dakota jail to a federal prison in Texas on March 20.  But recall that a national emergency was declared by Prez Trump on March 13, and we had all for a few weeks already been talking about social distancing.  I am fear little or no social distancing was possible while Ms. Cloud Bear was being transported by the United States Marshal Service to FMC Carswell in Texas.  And remember, now, Ms. Circle Bear is in her third trimester when being taking on an 800+ mile trip from South Dakota to Texas in the midst of a national pandemic.  

When Ms. Circle Bear gets to Texas, very pregnant, she is "immediately placed on quarantine status at FMC Carswell."  I am not sure if I find that detail reassuring, but I suspect that status just made being very pregnant that much harder for this young woman.  Oh yeah, BOP also now tells us that Ms. Circle Bear  "had a pre-existing medical condition which the CDC lists as risk factor for developing more severe COVID-19 disease."  So why was she moved to Carswell in the first instance after the pandemic had broken out, and why did BOP apparently do so very little to ensure her health and safety along the way?

There are so many moments these days in which I am unsure about whether I could get more sad and more angry about our COVID criminal justice world, but this story surely has made me more sad and more angry. 

UPDATE: FAMM has this new press release titled "FAMM calls for an investigation into the death of Andrea Circle Bear who died of COVID-19 in Federal Bureau of Prisons custody." Here is a portion:

FAMM President Kevin Ring issued the following statement in response to the death of Andrea Circle Bear, who died giving birth to her child while on a ventilator due to COVID-19 complications while in Federal Bureau of Prisons (BOP) custody.  FAMM is calling for an immediate investigation, and for the expansion of compassionate release and use of home confinement.

“Not every prison death is avoidable, but Andrea Circle Bear’s certainly seems to have been — she simply should not have been in a federal prison under these circumstances,” Ring said. “In fact, nothing better demonstrates our mindless addiction to punishment more than the fact that, in the midst of a global pandemic, our government moved a 30-year-old, COVID-vulnerable pregnant woman not to a hospital or to her home, but to a federal prison.

“Her death is a national disgrace, and I hope it is a wake-up call. Ms. Circle Bear was sentenced to 26 months in prison, not the death penalty. We have to do better. The Justice Department should investigate why this happened and take steps to ensure that it never happens again.”

April 29, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Thursday, March 05, 2020

Will Oregonians vote to decriminalize all drug possession this November?

The question in the title of this post is prompted by this local news piece, headlined "Oregon Voters Could Decide This Year Whether To Decriminalize Drugs," about a ballot proposal that likely will be getting more and more attention in the months ahead.  Here are the basic details:

The proposed ballot measure, which has been financed by the New York-based Drug Policy Alliance, would make Oregon the first state to remove criminal penalties on possession of illegal drugs....

“By removing harsh criminal penalties, we want to bring people into the light,” said Anthony Johnson, a Portland political consultant who is a chief sponsor of the measure.  “We want people to be willing to talk to their friends and families and loved ones and get the treatment they need.”

The measure, now technically known as Initiative Petition 44, would reduce possession of illegal drugs — including heroin, methamphetamine and cocaine — to a non-criminal, $100 citation. And that citation could be waived if a person agrees to get a health assessment at a drug recovery center.  Drug trafficking and possession of large amounts of illegal drugs would continue to carry the same criminal penalties.

The proposed ballot measure also calls for providing a big increase in funding for drug treatment, which surveys suggest is more poorly funded in Oregon than in almost any state in the country. Most notably, the measure would divert most cannabis tax revenues away from schools and other services to provide at least $57 million a year for drug treatment. In addition, the measure calls for the state to take savings from reduced incarceration rates for drug crimes and put them into treatment programs.

Those efforts to boost treatment funding have been emphasized by measure petitioners. Several treatment advocates have endorsed the measure, including Richard Harris.  He founded Central City Concern in Portland and once headed the state’s office of Addictions and Mental Health Services. “The reality of it is that the effort to punish people because they have an addiction has always been a misplaced public policy,” Harris said.

But the initiative, which was first filed last August, has also raised concerns among many providers. Heather Jefferis is executive director for the Oregon Council for Behavioral Health, which represents many of the state’s major treatment providers. She said in a statement that, “We are not confident this proposal will address Oregon’s longstanding access crisis for Substance Use Disorder or Mental Health treatment services.”...

The decriminalization measure has met vociferous opposition from some law enforcement officials. Clackamas County District Attorney John Foote said he worries decriminalization would make it more socially acceptable to use dangerous drugs. “The trick is to not get people hooked in the first place,” he said. “If you get involved in heroin and methamphetamine, the road back is filled with failure.”

Oregon has already taken several steps toward reducing drug penalties. In 2017, the Legislature lowered several drug-possession charges from felonies to misdemeanors. And in many localities, prosecutors have increasingly focused on diverting drug offenders out of the criminal justice system and into treatment programs.

The Drug Policy Alliance, which helped fund Oregon’s 2104 cannabis legalization measure, has received major funding from billionaire investor George Soros. The group has so far provided virtually all the $850,000 donated to the measure campaign. Johnson said the campaign would be run by Oregonians and expects to attract many in-state donors.

The official website supporting Initiative Petition 44 (IP 44) is available at this link.  Here is how it describes the effort:

People suffering from addiction need help, not criminal punishments.  The Drug Addiction Treatment and Recovery Act, or IP 44, is a citizen initiative that Oregonians will vote on in November.  The idea is straightforward: instead of arresting and jailing people for drugs, we would begin using some existing marijuana tax money to pay for expanded addiction and recovery services, including supportive housing, to help people get their lives back on track.

This ballot measure doesn’t legalize any drugs.  Rather, it removes criminal penalties for small amounts of personal possession of drugs and directs people to drug treatment and recovery services.

March 5, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Friday, February 28, 2020

"Changing Course in the Overdose Crisis: Moving from Punishment to Harm Reduction and Health"

The title of this post is the title of this big new Vera Institute of Justice report.  Here is part of its Introduction:

[A]long with the reports and public dialogue about the opioid overdose crisis, there is increasing recognition that relying on criminalizing drug use and enforcement-led approaches does not work.  Indeed, it is now firmly established that the long-running “war on drugs” in the United States has not only failed to reduce illicit drug use and associated crime but has also contributed mightily to mass incarceration and exacerbated racial disparities within the criminal justice system, with a particularly devastating impact on Black communities.

Researchers at the Vera Institute of Justice (Vera) have long been working to provide accurate information about the latest evidence regarding justice system responses to problematic drug use and the opioid overdose crisis.  In so doing, Vera has highlighted innovative strategies that justice system actors are using to move away from enforcement-led approaches to drug use.  Furthermore, Vera, like others, has pushed for a public health approach to problematic drug use — one that simultaneously seeks to reduce contact with the justice system for people who use drugs and ensure that people who use drugs and do have such contact can access harm reduction, treatment, and recovery services to reduce the negative consequences of their drug use.

This report provides a look at the current intersection of problematic drug use and the criminal justice system. It offers practical guidance for practitioners, policymakers, and funders by compiling the wide range of interventions that communities can consider to minimize justice system contact for people who use drugs and to improve public health and safety.  In this report, Vera starts from the perspective that there is an urgent need to transform the criminal justice system’s response to drug use and to implement policies and practices that advance health.  The findings and recommendations in this report are guided by the principles of harm reduction — a set of practical strategies and ideas aimed at reducing the negative consequences of drug use without insisting on cessation of use — and by the conviction that problematic drug use should be addressed primarily as a public health problem rather than a criminal justice issue.

This report addresses the long-standing history of racialized drug policies in the United States and highlights the ways they have fueled mass incarceration and racial disparities at every point along the justice continuum.  It also shows that a new path forward requires not only bold leadership at the local level, where real change is more tangible, but also sustained investment in community organizations led by people who are directly impacted. This report is organized into four main sections.  To begin, it offers a brief overview of the context of the current drug overdose crisis and the ways that an enforcement-led approach to drug use has harmed people and communities.  The report then outlines the spectrum of community-based and justice system-based interventions that are currently applied in response to drug use at the local level.  The third section of the report describes how these interventions come together in two places: Ross County, Ohio, and Atlanta, Georgia.  These case studies describe responses in two different contexts, highlighting successes, common themes, and ongoing challenges.  The report concludes with key strategies and recommendations for changing the trajectory of justice system responses to drug use by drawing on these two case studies and interviews with advocates, scholars, and practitioners in the field.

February 28, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing | Permalink | Comments (0)

Thursday, February 27, 2020

"The Hidden Cost of the Disease: Fines, Fees, and Costs Assessed on Persons with Alleged Substance Use Disorder"

The title of this post is the title of this new paper authored by Meghan O'Neil and Daniel Strellman and available via SSRN.  Here is its abstract:

The age-old adage “crime doesn’t pay” is true in more ways than one. This article stems from two years of field work in problem-solving treatment courts; circuit, district, and federal courts; addiction treatment centers; and probation offices throughout the State of Michigan.  Persons experiencing substance use disorder (SUD) can rapidly amass criminal charges on any given day, given that the private use of controlled substances is illegal, as is driving while intoxicated.  These repeated behaviors can, and frequently do, culminate in incarceration, supervision (e.g., probation or parole), and hefty fines and fees.  Moreover, persons experiencing SUD are far from uncommon: overdose is now the leading cause of death for Americans under 50, and in 2018, focus groups with state district court judges in Michigan estimated that four out of every five criminal defendants were experiencing problematic substance use, illuminating the overwhelming degree to which SUD permeates our criminal justice system.

Practitioners, academics, and policymakers involved with the justice system ought to be concerned with the costs assessed in SUD cases because they can be potentially expensive to collect, excruciatingly burdensome on vulnerable people involved with the justice system trying to maintain sobriety and re-enter society, and present a generally inefficient method of punishment when the cost of collection outweighs the total amount which is ultimately collected by the state.  While crime doesn’t pay generally, it is particularly costly for vulnerable defendants experiencing SUD.  Identifying best practices for supervision of SUD offenders might present avenues to improve the cost effectiveness and efficiency of fines in ways that actually reduce subsequent offending — as fines were meant to do.

February 27, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, February 25, 2020

"Why prosecutorial discretion must be less discreet for criminal justice"

The title of this post is the headline of this notable recent Hill commentary authored by Lars Trautman. Here are excerpts:

Although the term “prosecutorial discretion” is familiar to most people, the extent to which it influences the direction and outcomes of each case may not be.  Does an offense deserve criminal charges, and if so which charges?  Should an individual receive bail or await trial in a jail cell? Is that trial even necessary, or will a plea deal suffice? Prosecutorial discretion lies at the heart of the answer to these questions and more.

Yet legislators are in an uproar because some prosecutors have started using their discretion to presumptively dismiss or divert all cases involving certain low level offenses. In Indiana, this includes the Marion County prosecutor declining to prosecute cases involving under an ounce of marijuana.  Likely ignorant of the fact that prosecutors routinely get rid of these cases without a conviction anyway, legislators have taken this replacement of individual decisions with an office wide policy as an affront. The result is a push to let no law go unprosecuted.

That is of course impractical. There are simply too many offenses and possible offenders to actually prosecute them all.   This means that some prosecutorial discretion is inevitable.... General policies favoring alternatives to prosecution extend the benefits of this discretion universally in those cases where the consequences of a conviction are counterproductive to the aims of justice.  Such policies also recognize that scarce prosecutorial resources are generally better spent pursuing much more serious conduct. Ignoring marijuana possession to focus on violent crime should not be a controversial call.

But just because the legislature is attempting to solve a fictional problem does not mean very real ones do not exist.  Prosecutorial discretion suffers from unaccountability and lack of transparency that could undermine its potential for good.  It operates as a kind of black box that only prosecutors can see inside as facts go in, decisions come out, and explanations are rarely forthcoming.  Policies are seldom public, and prosecutors do not usually disclose why they reached an outcome in any given case.

This immunity from scrutiny becomes protection against any challenge.  After all, a bad outcome alone is standard fare in our justice system.  Without any information on why it was reached, who is to say it was not the natural and normal result?  But attempting to eliminate prosecutorial discretion does not address any of these issues.  With more than 13 million misdemeanor charges alone filed every year in the country, and annual prosecutorial caseloads exceeding a thousand in some places, the evidence suggests that discretion is probably not used enough.

Instead, legislators should work to verify that prosecutors exercise their discretion fairly.  They can do this by pushing prosecutors to release relevant policies to the public, explain individual decisions, and collect and publish data on these decisions.  Trying to remove discretion from prosecution is sheer folly.  But as a necessary force behind many of the decisions that occur in criminal justice, it should be brought further into the light.  Only then will the public be able to see that it is correcting imbalances and injustices rather than continuing them.

February 25, 2020 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, February 21, 2020

Enjoy full day of "The Controlled Substances Act at 50 Years" via livestream

CSA at 50_socialBlogging will be light over the next few days as I am in the midst of helping to conduct this amazing conference which started last night at the Arizona State University Sandra Day O’Connor College of Law.  I have had the pleasure and honor of working with the amazing team at The Ohio State University's Drug Enforcement and Policy Center (@OSULawDEPC), along with the also amazing team at ASU's Academy for Justice (@Academy4Justice), to put together amazing and diverse array of panels and workshops on all sorts of topics relating to the past, present and future of the CSA's development, implementation and enforcement.

The basic agenda for the event can be found at this page, and last night  started with an amazing keynote by the amazing Keith Humphreys, Stanford University, Esther Ting Memorial Professor on "Federal Policy and the Dual Nature of Drugs," followed by an amazing response to keynote by Peter Reuter, University of Maryland, Professor of Public Policy and Criminology asking "Do Drug Problems have more influence on Drug Policy than vice versa?".

I am especially pleased and excited by this list of speakers who are participating, and today begins a series of terrific panels. and I can provide this link with its own links to the livestream for each of the panels. I think every part of the conference will be amazing, and I hope folks can make the time to tune in.

February 21, 2020 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, February 03, 2020

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

The US Sentencing Commission today released the latest in a series of data reports 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 December 31, 2019 and for which court documentation was received, coded, and edited at the Commission by January 29, 2020.

These new data from the USSC show that 2,387 prisoners have been granted sentence reductions, and that the average sentence reduction was 71 months of imprisonment 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 state that this part of the FIRST STEP Act, by shortening nearly 2400 sentences by nearly 6 years, has now resulted in over 14,000 prison years saved(!).

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 huge impact that can be measure in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

February 3, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, January 29, 2020

Dispensary owner gets (within-guideline?!) federal prison term of 15+ years for marijuana sales that could be legal under most state laws

The headlined of this local article from Michigan, "Michigan medical marijuana seller gets prison: ‘Federal law has not changed,’ judge says," does not fully capture all the notable elements of a federal sentencing for marijuana sales yesterday.  Here are the details via the press article:

The former owner of medical-marijuana dispensaries in several Michigan cities was sentenced Tuesday, Jan. 28, to nearly 16 years in federal prison.  Danny Trevino, 47, of Lansing, who had Hydroworld dispensaries in Grand Rapids, Flint, Jackson, Lansing and elsewhere, had avoided state criminal and civil penalties over the years but was convicted of multiple federal charges.

“States are changing marijuana laws across the country, certainly that’s true, but federal law has not changed,” U.S. District Judge Paul Maloney said.

Trevino sought the statutory minimum sentence of five years in prison. Maloney instead sentenced Trevino to 15 years, eight months in prison - at the low end of advisory sentencing guidelines, which ranged from 188 to 235 months.

The sentence upset several family members and pro-marijuana activists who attended the sentencing in Grand Rapids. “What you saw is a travesty,” Detroit resident Richard Clement said. His shirt read: “#GETNORML,” “#WARONDRUGS” and “CANNACURES.”

He said it was difficult to reconcile what he called a harsh sentence in a state where marijuana is legal. He and others think Trevino was targeted because he is Hispanic. “This was totally racist,” a woman said, leaving the courthouse. “None of the (other dispensaries) ever get raided.” She was with Trevino’s family but refused to give her name....

Trevino, who has operated dispensaries since 2010, was convicted in an August jury trial of 10 felony charges, including conspiracy to manufacture, distribute and possess marijuana and maintaining a drug-involved premises. He was not allowed to use the state’s medical-marijuana law as a defense to the federal charges.

Nonetheless, the government said, he acted outside of the boundaries of the state medical-marijuana law. Defense attorney Nicholas Bostic called that a “fallacy.” He said that Trevino was successful in challenging state complaints after he had been arrested and the subject of several search warrants. He was arrested in April 2014 in Grand Rapids for delivery or manufacture of marijuana and maintaining a drug house but charges were dropped a month later, court records showed.

He fought forfeitures of funds seized by police that were ultimately returned by state courts. Trevino’s businesses were raided 16 times between 2010 and 2016, the government said. He provided the state with store records and tax records that showed his businesses brought in nearly $3 million.

“He thought he was legal,” Bostic told the judge. He said his client, whose previous drug convictions prevented him from being a caregiver, oversaw the operation. He said that every single sale of medical marijuana at his businesses would have been legal under laws in 33 states and the District of Columbia that allow medical or recreational marijuana. Trevino earlier told MLive: "How could I not have been in compliance if I was acquitted and found not guilty. We were winning and they didn’t charge us, so we kept going.”

Assistant U.S. Attorney Daniel McGraw said Trevino knew he acted illegally under federal law. He called Trevino “defiant, unrepentant and undeterred from committing the current federal crimes.” After federal investigators used a search warrant at one of his locations in 2016, Trevino posted on Facebook: “I guess Hydroworld is illegal. Lol OK.”

McGraw said Trevino acted as though marijuana – legalized in 2018 for recreational use in Michigan – was always legal. Trevino was “told time and time again that it was illegal and your honor, he simply didn’t care. He didn’t care. He kept operating," the prosecutor said.

The judge said his concern was Trevino’s conduct under federal law. “I fully recognize that the landscape has changed in many states in this country,” Maloney said. “The fact is, marijuana is a Schedule 1 controlled substance.” He noted that Congress has eliminated the mandatory minimum prison sentence for crack cocaine but has not acted on marijuana.

He said Trevino “had to know he was on the radar screens of federal authorities.” The judge ordered Trevino to serve four years on supervised release once his prison term ends. He also fined Trevino $11,000.

Without seeing more materials from this case, I am adverse to making too many quick judgments about this outcome. But nearly 16 years for quasi-legal marijuana sales seems pretty severe absent a lot more aggravating facts.  This article suggests that the defendant here was a "problem child" under Michigan state law, and so I suppose I can understand why the feds went after him and why the judge decided he merited a significant sentence. But if the defendant possibly believed that he was complying with state law, it seems misguided to sentence him pursuant to federal sentencing guidelines that are based around the “heartland” of a fully illicit drug dealer.

January 29, 2020 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (3)

Sunday, January 26, 2020

Different type of drug dealers get lengthy (though still way-below-guideline) sentences for RICO conspiracy to push opiods

There are nearly 400 drug dealers sentenced in federal courts every single week in the US, but a number of notable defendants were sentenced last week for their role in a somewhat different kind of drug conspiracy.  This Forbes article provides the basic details:

John Kapoor, the 76-year old billionaire founder of Insys Therapeutics, has been sentenced to 66-months in prison for orchestrating a system of bribery and kickbacks to physicians across the US in exchange for prescribing and over prescribing large amounts of the powerful fentanyl spray, Subsys, to patients with little to no need of the drug. Kapoor is the first ever CEO of a drug company to be convicted by the federal government in their fight to combat the opioid crisis.

Kapoor’s sentence was handed down by U.S. District Judge Allison Burroughs in a Boston federal court on Thursday January 23rd.... It is the lengthiest prison sentence imposed on any of the seven former Insys executives who were found guilty of racketeering charges in May of 2019. In addition to Kapoor’s 66-month sentence he was sentenced to three years of supervised release and a $250,000 fine.

Similar sentences have been handed down in recent days to Kapoor’s seven co-conspirators.  Michael Gurry, Insys' former vice president, along with Richard Simon, Insys’ national director of sales, each received 33-months in prison; Michael Babich, Insys’ former CEO,was sentenced to 30-months; Joseph Rowan, the company's regional sales director, received 27 months; Alec Burlakoff, the former vice president of sales, was sentenced to 26 months Thursday; and Sunrise Lee, the former regional sales director, to a year and a day in prison....

The landmark case has been notable on two major fronts, the first being big pharma’s hand in the perpetuation and exacerbation of the opioid epidemic in the US and second, Insys’ systematic defrauding of the American healthcare system. From 2012 and 2015, Insys allegedly paid physicians to prescribe Subsys to patient and then went on to lie to insurance companies and defraud hundreds of thousands of dollars from Medicare from physician to physician to ensure that the expensive fentanyl-based painkiller would be covered....

Kapoor’s five and a half year sentence is considerably less than the 15-year prison sentence that was being sought by prosecutors who asserted that Kapoor was the ‘fulcrum’ of the racketeering scheme and was the only defendant who could not have been replaced by another conspirator.  Federal prosecutors wrote in a sentencing memo, "He was the principal leader, who personally approved, and thereafter enforced, the corrupt strategies employed throughout the conspiracy," continuing, "This crime would not have happened, could not have happened, without John Kapoor. It was, in almost every way, Kapoor’s crime."

Kapoor and his four co-defendants were faced with seven victims and family members of victims whose gave emotional statements about how their lives had been destroyed by Insys’ actions.  “By the grace of God, I am here to speak for all of us including the ones who lives you took,” said victim Paul Lara, who says he still suffers from being prescribed a drug that was never meant for him. Subsys, the powerful fentanyl spray is intended for terminal cancer patients to ease the pain during end of life care....

"Today's convictions mark the first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids," U.S. Attorney Andrew E. Lelling said in a statement.  "Just as we would street-level drug dealers, we will hold pharmaceutical executives responsible for fueling the opioid epidemic by recklessly and illegally distributing these drugs, especially while conspiring to commit racketeering along the way." Lelling continued,  "This is a landmark prosecution that vindicated the public's interest in staunching the flow of opioids into our homes and streets."

Though Kapoor will now have to be in federal prison until he is in his 80s and might not live out the term, this CBS News article reports that victims are not content with the sentences imposed. The piece is headlined "Pharmaceutical executives 'got away with murder,' says mom of woman who died of an overdose," and here is an excerpt:

The prison sentence given to the pharmaceutical executive who helped fuel the opioid crisis "wasn't fair," the mother of a woman who died of an overdose said.  Deb Fuller was at the Boston courthouse Thursday, where Insys Therapeutics founder John Kapoor was sentenced to five and a half years for his role in bribing doctors to prescribe the powerful painkiller Subsys.  "I don't think it was fair. It wasn't fair to all the victims," Fuller told CBS News consumer investigative correspondent Anna Werner....

Former Insys Therapeutics Vice President of Sales Alec Burlakoff, who was featured in a video of company employees rapping about increasing sales, also was sentenced.  He got a shorter term of 26 months in prison, reflecting the fact that he cooperated with prosecutors.  Outside the courthouse, when asked if there was anything he would say to families of people who overdosed on Subsys, he said, "I'm sorry, very sorry."

Four other executives received sentences ranging from a year and a day to 33 months, not long enough for many families. "They all got away with murder because that's exactly what they did because it's more than Sarah that died from it," Fuller said.

January 26, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Thursday, January 23, 2020

"Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back"

Fentanylgraphic_map_0The title of this post is the title of this notable new report from the Drug Policy Alliance. Here is part of its executive summary:

The U.S. is in the throes of a deadly overdose crisis that claimed almost 70,000 lives in 2018. Of those, around 30,000 deaths involved synthetic opioids like fentanyl.  Policymakers have responded to the overdose crisis with a rhetorical emphasis on “treatment instead of incarceration,” leading journalists to comment that we are in the midst of a “gentler war on drugs.”  However, despite a change in discourse, draconian policies have persisted and in many cases been expanded.  This is exemplified by many lawmakers’ reaction to fentanyl and other analog drugs, both on the state and federal level.

Since 2011, 45 states have proposed legislation to increase penalties for fentanyl while 39 states and Washington DC have passed or enacted such legislation.  At this moment, some members of Congress are working to codify harsher penalties by placing fentanyl analogs permanently into Schedule 1 in both the Senate and the House with proposed legislation like the Stopping Overdoses of Fentanyl Analogues Act of 2019 (SOFA) and the FIGHT Act.  In his annual State of the State 2020 address this month, New York’s Governor Cuomo proposed banning fentanyl analogs and expanding access to medication assisted treatment in the very same sentence.

Legislators have dusted off the drug war playbook and proposed a variety of new punitive measures including new mandatory minimum sentences, homicide charges, involuntary commitment, expanded powers for prosecutors and more.  These efforts repeat the mistakes that epitomize the failed war on drugs, while undermining efforts to reform our criminal justice system and pursue a public health approach to drug use.  Indeed, such proposals risk compounding the overdose crisis.

Punitive approaches to fentanyl are particularly disturbing because they run counter to recent policy shifts that have been largely bipartisan in nature. One recent policy shift is a growing promotion of public health approaches to drug use.  There is mounting support for a number of policies and interventions -- such as increasing access to voluntary, medication-assisted treatment and naloxoneb -- as more effective responses to the current overdose crisis than the revolving door of jail or prison.  Another notable policy shift is the long-overdue recognition that decades of harsh and racially-biased drug enforcement have had devastating consequences on individuals and communities, while wasting billions of taxpayer dollars.  A recent analysis of federal fentanyl sentencing revealed that 75% of all individuals sentenced for fentanyl trafficking were people of color, suggesting that fentanyl enforcement already mirrors other disparate drug enforcement.

The criminal justice reform movement has made tremendous progress on reducing drug sentences at the local, state and federal levels.  The trend toward tougher penalties for fentanyl presents a threat to the reform movement, undercutting initiatives to reduce mass criminalization and incarceration.  To date, none of the states that enacted harsher penalties for fentanyl, nor the federal government, have demonstrated a reduction in fentanyl-involved deaths because of these new laws.

In this context, the criminal justice reform movement must do more to combat punitive proposals, putting as much energy into challenging the exceptionalism around fentanyl as other efforts to reduce sentences.  This paper aims to shine a light on the danger that harsh fentanyl penalties present to the criminal justice reform movement and efforts to end the war on drugs.

January 23, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, January 07, 2020

"Why Is the Chief Justice of Ohio's Supreme Court Lobbying Against Sentencing Reforms?"

The question in the title of this post is the headline of this Reason commentary from a few weeks ago that I just came across today. Here are excerpts from a piece worth reading in full:

Ohio lawmakers trying to pass sentencing reforms have faced opposition this year from the usual suspects, such as lobbyists for prosecutors and law enforcement. But they've also run into vocal criticism from an unexpected source: Ohio Supreme Court Chief Justice Maureen O'Connor.

It is unusual — and it may damage the objectivity and independence of the court system — for sitting Supreme Court justices to lobby for or against legislation.  But that hasn't stopped O'Connor from jumping into the middle of the legislature's deliberations over a pair of criminal justice reform proposals. In newspaper op-eds, public appearances, and letters to members of the state Senate, O'Connor, who happens to be a former prosecutor and lobbyist, has repeatedly argued against a bill that would downgrade some felony drug possession charges to misdemeanor offenses.

O'Connor, of course, has a First Amendment right to speak about legislation and to criticize the legislative process if she wants.  But she seems to recognize the unusual nature of her advocacy. "You may think it unprecedented to receive a letter from me, as Chief Justice, that addresses my concerns about [Senate Bill 3]," O'Connor wrote in a December 3 missive to state legislators, a copy of which was obtained by Reason.  But, she adds, it is "my duty" to speak out about issues that "affect the administration of criminal justice and the operation of Ohio's courts."...

Sen. John Eklund (R–Munson), the sponsor of the bill in question and one of the recipients of O'Connor's letter, agrees that it's unusual to get a letter from a sitting Supreme Court justice advocating against a specific piece of legislation. Eklund's bill is one of two major criminal justice reform measures that have been jockeying for legislators' support in Columbus this year. He says says it's rooted in the idea that people deserve a chance to prove they can learn from past mistakes. "We want people to get better and move on to lead productive lives, while also ensuring that traffickers are arrested and stay behind bars," he explains....

At the same time that she's been lobbying against Senate Bill 3, O'Connor has been pushing the legislature to approve the other criminal justice bill it was considering this year: House Bill 1.  In her December 3 letter, O'Connor highlights the House bill's support from law enforcement groups — she specifically name-checks the Ohio Prosecuting Attorneys Association — as a reason to prefer it to the Senate proposal.

The House bill also seeks to shunt some drug offenders into treatment programs, but it does not reclassify some drug felonies as misdemeanors. O'Connor and others claim that the cudgel of a felony charge is necessary to get offenders into treatment. "Downgrading the underlying offenses will only reduce one of these incentives and the likelihood of a lasting recovery," the chief justice wrote in a September 19 letter to Eklund.

There's no law or rule that says judges can't lobby for legislation. Indeed, Jonas Anderson, a professor of law at American University who has written about judicial ethics and lobbying, points out that there are times when judicial input can offer important information to legislators, particularly when they can provide technical information about the workings or needs of the justice system.

But judges should be careful about crossing the line into pushing or opposing specific policies, he adds. "We think of the judicial system as a place where you can get a decision about a dispute that's free from political considerations," says Anderson.

In lobbying against Senate Bill 3, O'Connor has indeed made some technical arguments about how the court system would operate under the new sentencing guidelines proposed by the law.  But her objections are overwhelmingly directed at the underlying policy....

After a career defined by criss-crossing the dividing lines between branches of government — and by advocating for tougher criminal justice legislation both from inside the executive branch and as an outside lobbyist — O'Connor apparently thinks it appropriate to tell state lawmakers what to do.  Indeed, this is not the first time she's tried to stamp out sentencing reforms.  In 2018, she penned op-eds telling voters to oppose a ballot measure that would have reduced drug possession penalties in order to keep low-level nonviolent offenders out of the prison system.  Passage of the measure would be "catastrophic" for Ohio, she wrote.  Not exactly the sort of dispassionate analysis one would hope to read from the head of the state's highest court.  Voters listened, and they defeated that proposal at the ballot box last year....

By using her authority as the state's top jurist to parrot talking points from prosecutors and law enforcement lobbyists, O'Connor may yet succeed in stomping criminal justice reform efforts, but she also undermines her own credibility and that of the state's court system.  The legitimacy of the judiciary survives largely because the system is perceived to be separate from the political machinations that go on within a legislature.  O'Connor's willingness to use her judicial position to help shape policy should make Ohioans wonder about her ability to be an objective arbiter.  "Judges shouldn't be muzzled," says Anderson, "but lobbying as a judge — not as an individual, but as a judge — risks the independence and objectivity of the judicial branch."

January 7, 2020 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Monday, January 06, 2020

"Killer High: A History of War in Six Drugs"

The title of this post is the title of this interesting looking new book authored by Peter Andreas.  Here is the book's description from the publisher's website: 

There is growing alarm over how drugs empower terrorists, insurgents, militias, and gangs.  But by looking back not just years and decades but centuries, Peter Andreas reveals that the drugs-conflict nexus is actually an old story, and that powerful states have been its biggest beneficiaries.

In his path-breaking Killer High, Andreas shows how six psychoactive drugs-ranging from old to relatively new, mild to potent, licit to illicit, natural to synthetic-have proven to be particularly important war ingredients.  This sweeping history tells the story of war from antiquity to the modern age through the lens of alcohol, tobacco, caffeine, opium, amphetamines, and cocaine.  Beer and wine drenched ancient and medieval battlefields, and the distilling revolution lubricated the conquest and ethnic cleansing of the New World.  Tobacco became globalized through soldiering, with soldiers hooked on smoking and governments hooked on taxing it.  Caffeine and opium fueled imperial expansion and warfare.  The commercialization of amphetamines in the twentieth century energized soldiers to fight harder, longer, and faster, while cocaine stimulated an increasingly militarized drug war that produced casualty numbers surpassing most civil wars.

As Andreas demonstrates, armed conflict has become progressively more drugged with the introduction, mass production, and global spread of mind-altering substances.  As a result, we cannot understand the history of war without including drugs, and we similarly cannot understand the history of drugs without including war.  From ancient brews and battles to meth and modern warfare, drugs and war have grown up together and become addicted to each other.

January 6, 2020 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (1)

Friday, December 20, 2019

"Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

The title of this post is the title of this notable new article authored by Adam Gershowitz just posted to SSRN. Here is its abstract:

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids.  The evidence against both doctors was overwhelming.  They each sold millions of opioid pills.  Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests.  Instead, the doctors simply handed the patients opioids in exchange for cash.  To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions.  Both doctors made millions of dollars profiting off the misery of people addicted to opioids.  Even though juries convicted both doctors of similar criminal charges, they received drastically different sentences.  The first doctor was sentenced to 5 years, while the second doctor received a 35-year-sentence.

This article reviews 25 of the worst opioid pill mill doctors to be sentenced in the last five years, and it details drastic sentencing disparities in the federal system.  In more than half the cases, judges departed well below the Federal Sentencing Guidelines to impose sentences that were decades less than would be expected.

The sentencing variations in pill mill cases are not driven by traditional explanations such as the trial penalty or the defendant’s criminal history.  Instead, the sentencing variations are explained primarily by the age of the doctors.  Many pill mill doctors are in their 60s and 70s, and judges appear to be tailoring their sentencing decisions to ensure that older doctors will not spend the rest of their lives in prison.  Additionally, prosecutors face an uphill battle in proving the drug quantity against white-collar doctors (rather than street dealers) who can claim that some of their prescriptions were legitimate.  This article documents the difficulty of equitably punishing pill mill doctors, as well as the significance of age in sentencing older, white-collar offenders.

December 20, 2019 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Wednesday, December 18, 2019

Drug Policy Alliance releases big new report titled "Rethinking the 'Drug Dealer'"

As detailed in this press release, yesterday "the Drug Policy Alliance released a new report making the case for rethinking the way the United States responds to the 'drug dealer'."  Here is more from the press release that serves as a kind of summary of the full report:

The report demonstrates how the United States’ punitive approach to people who sell or distribute drugs — rooted in stigma, ignorance and fear, rather than evidence — has done nothing to reduce the harms of drug use or improve public safety, while instead creating new problems and compounding those that already exist....

“With a record 70,000 deaths from accidental overdose in 2017, people are understandably searching for solutions, but applying harsh penalties to drug sellers scapegoats people who are more often than not drug users as well, while ignoring the larger issue,” said Lindsay LaSalle, Managing Director of Public Health Law and Policy at the Drug Policy Alliance.  “Instead, we should be using the same resources and determination to reduce the actual harms of both drug use and drug prohibition, repair the criminal legal system’s discriminatory response to the drug trade, and increase access to evidence-based treatment and support services that benefit health, public safety and economic opportunity in the long term.”

Among the flaws in the current system, the report highlights the following:

  • Current laws were created on the premise that they would reduce overall supply, and in turn, consumption. In reality, the opposite has occurred. We have increased the number of people incarcerated for selling or distribution offenses by 3000% — from 15,000 in 1980 to 450,000 today — and drugs are more readily available, at significantly lower prices.
  • Nearly half of people who have reported selling drugs also meet the criteria for a substance use disorder, supporting the idea that they are selling drugs, to an extent, to support their own dependency.
  • Laws against drug selling are so broadly written that people arrested with drugs for personal use can get charged as “dealers,” even if they were not involved in selling at all.
  • While the criminal legal system purports to focus on high-level sellers, the data show that supply-side criminalization disproportionately impacts the lowest-level people on the supply chain.
  • The current system has a discriminatory impact on communities of color, despite the fact that data suggest white people are slightly more likely than Black or Latinx people to report having sold drugs....

Accordingly, DPA has provided a set of tailored recommendations based on three broad principles:

  • First, to the maximum extent possible, society should deal with drug involvement outside the destructive apparatus of criminalization — and to the extent that the criminal justice system continues to focus on drug selling and distribution, it must do so with a commitment to proportionality and due process.
  • Second, we should focus on reducing the harms of drug distribution (for example, reducing drug market-related violence), rather than attempting to eliminate drug market activity.
  • Third, we must take seriously the criminal justice system’s discriminatory response to the drug trade and work toward reforms that both repair the harm already done while preventing further harm to communities of color and poor communities.  With the report public, DPA aims to expand the current public dialogue around drug reform, to focus on who the people now labeled “drug dealers” in the United States really are and how we, as a society, can respond to them in ways that will keep people and communities safer and healthier.

The full 76-page report can be accessed at this link and a two-page executive summary is available here.

December 18, 2019 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"Opioids, Addiction Treatment, and the Long Tail of Eugenics"

The title of this post is the title of this notable new article authored by Laura Appleman now available via SSRN.  Here is its abstract:

Our attitude, treatment, and punishment of opioid addiction partly results from the long, intertwined history of eugenics and incarceration.  There is a thread of eugenics-based philosophy undergirding our widespread imprisonment of the poor, disabled, and dependent.  The current approach to opioid addiction in the criminal justice and sentencing worlds reflects this bias, hindering our ability to best treat the opioid crisis.  Our 21st century tactics to combat the opioid addiction crisis unwittingly track the methods used to address the widespread use of opioids in the late 19th and early 20th centuries, with equally troubling results.  Indeed, addiction to pharmaceutical opiates is no recent problem; historically, iatrogenic drug use has been far more extensive than illicit drug use.  Old errors are being re-enacted as we attempt to solve the problems of opioid-addicted offenders during sentencing, inside correctional facilities, and on release.  Accordingly, before we craft workable policies to combat the opioid crisis, we must fully explore and understand the history of iatrogenic opioid addiction, to avoid making the same mistakes.

December 18, 2019 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (0)

Wednesday, December 11, 2019

Eighth Circuit panel explains the reach of FIRST STEP Act retroactivity eligibility

A helpful readers made sure I did not miss the helpful opinion from an Eighth Circuit panel today in US v. McDonald, No. 19-1221 (8th Cir. Dec. 11, 2019) (available here) concerning the retroactivity provision of the FIRST STEP Act.  I have not consistently kept up with this part of FIRST STEP jurisprudence, but I am consistently pleased when a circuit opinion seeks to bring simple clarity to a complicated issue.  So, here are a few paragraphs from ole McDonald:   

McDonald’s Count 39 conviction is a “covered offense” under § 404 of the First Step Act because (1) it is a violation of a federal statute; (2) the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act; and (3) it was committed before August 3, 2010.  Consequently, McDonald is eligible for a sentence reduction on Count 39: the district court may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time of the covered offense was committed.”  First Step Act § 404(b). 

It is true, as the district court noted, that McDonald’s base offense level under the Sentencing Guidelines was based on more than 150 kilograms of powder cocaine, not cocaine base.  But this Guidelines calculation does not change the fact that he was convicted on Count 39 for distributing cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii) (1996). The First Step Act applies to offenses, not conduct, see First Step Act § 404(a), and it is McDonald’s statute of conviction that determines his eligibility for relief, see, e.g., United States v. Beamus, No. 19-5533, 2019 WL 6207955, at *3 (6th Cir. Nov. 21, 2019); United States v. Wirsing, No. 19-6381, 2019 WL 6139017, at *9 (4th Cir. Nov. 20, 2019).

The government does not argue that McDonald did not commit a “covered offense.”  Instead, it contends the district court did not abuse its discretion by denying McDonald’s motion because it had already reduced his sentence in 2016.  But the fact that McDonald received a sentence reduction based on a retroactive Guidelines Amendment does not affect his eligibility for a sentence reduction under the First Step Act.  A court considering a motion for a reduced sentence under § 404 of the First Step Act proceeds in two steps.  First, the court must decide whether the defendant is eligible for relief under § 404. Second, if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction.  That the court might properly deny relief at the discretionary second step does not remedy any error in determining ineligibility at the first step....

Because McDonald is eligible for a sentence reduction under the First Step Act, we remand for the district court to exercise its discretion whether to grant relief.

December 11, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, December 08, 2019

"From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis"

The title of this post is the title of this new article authored by Jelani Jefferson Exum now available via SSRN. Here is its abstract:

The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.”  The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat.  Criminal sentencing would come to be the main weapon used in this pressing combat.  In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years.  When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties.  Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country.  What the War on Drugs has not done is eradicate drug abuse in the United States.  And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict.

The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.”  However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law.  And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.”

Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation.  The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.”  While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda.  To do this it requires recasting potential drug offenders as community members, rather than enemies.  This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration.  The tasks must be to decide on a goal of drug sentencing, and to develop multifaceted approaches to address and eradicate the underlying sources of the drug problem.  When this is done, we may find that more appropriate purposes of punishment — rehabilitation and retribution — compel us to think beyond incarceration, and certainly mandatory minimum sentencing laws, as the appropriate punishment type at all.

December 8, 2019 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Thursday, November 21, 2019

"Prosecuting Opioid Use, Punishing Rurality"

The title of this post is the title of this new paper authored by Valena Elizabeth Beety no available via SSRN. Here is its abstract:

The opioid crisis spotlights rural communities, and accompanying that bright light are long-standing, traditional biased tropes about backwards and backwoods White Appalachians. These stereotypes conflate rurality with substance use disorder as the next progression in dehumanizing stereotypes.  Widespread attention to our nation’s use disorder crisis, however, also brings an opportunity to recognize these fallacious stereotypes and to look more closely at the criminal legal systems in rural communities.  In this Article, I use drug-induced homicide — what has become a popular prosecutorial charge in response to the opioid crisis — as a prism to identify and critique the failings in rural criminal courts more broadly.  This Article includes modest recommendations that acknowledge and respond to these inadequacies while attempting to preserve people’s constitutional rights and decrease opiate-related overdoses.

November 21, 2019 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Wednesday, November 20, 2019

Might we reasonably expect marijuana reform or other criminal justice issues to be engaged in tonight's Dem debate?

There is another Democratic Primary Debate slated for tonight, taking place in Atlanta, and I suspect one would get quite drunk if drinking every time someone says quid pro quo as suggested by Rolling Stone.  What I am not sure of is whether someone would be very drunk or very sober if the drinking word was marijuana.  As the title of this post suggests, there are reasons to think this debate might engage the issues given that former VP Joe Biden was talking about gateway drugs recently, and the Judiciary Committee of the House of Representatives today moved forward the Marijuana Opportunity Reinvestment and Expungement (MORE) Act.   

Of course, you can keep up with marijuana reform action at my Marijuana Law, Policy & Reform blog, and here are some highlights from recent posts over there that should be especially relevant to folks discussing the modern policies and politics of reform:

November 20, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences | Permalink | Comments (0)

"The Latest Failure in the War on Drugs"

The title of this post is the title of this new New York Times commentary authored by Brandon D.L. Marshall and Abdullah Shihipar.  Here are excerpts:

[D]espite the recognition of drug use as a public health issue, some states have also introduced “drug-induced homicide” laws that put the responsibility of an overdose at the feet of the drug suppliers. In Rhode Island, for example, under “Kristen’s Law” a person who supplies drugs to someone who overdoses can be punished with a life sentence.

These laws have been enacted in at least 25 states, while a few more are considering adopting them. They represent a return to the outdated “war on drugs” approach, which decades of research has shown to be unsuccessful. It instead increases risks for those who use drugs, particularly minority populations and people of color....

People who supply drugs are often friends or family members of those who overdose and often use drugs themselves. In a national survey, more than two in five people who reported having sold drugs also said they meet the criteria for a substance use disorder.  Another analysis of drug-induced homicide news stories, conducted by the Health in Justice Action Lab at Northeastern University, found that 50 percent of people who were charged under drug-induced homicide laws were either friends, caretakers, partners or family members.  Drug transactions are not as simple as buyer and seller....

Proponents say that because these laws have good Samaritan provisions — which protect from criminal consequence those who seek emergency medical assistance at the scene of a suspected drug overdose — they will not discourage people from calling 911 to report an overdose.  However, while studies have shown that knowledge of good Samaritan protections is associated with a willingness to call 911 in the event of an overdose, people are still afraid to call because of fear they will be charged....

What’s more, putting drug users in jail will only worsen the overdose crisis.  People who have recently been released from prison are at much greater risk of overdosing than the public — up to 40 times greater in some cases.  Most jails and prisons across the country do not have medications to treat opioid addiction, which means that when people are released they are especially vulnerable to fatal overdoses.

The war on drugs has hit communities of color the hardest, with Black and Latinx people much more likely to be arrested for simple possession and to receive harsher sentences than whites, despite rates of drug use being similar across all communities.  Even with promises from the authorities to pursue a public health approach, racial disparities in drug-related arrests persist.  A study conducted in Washington State found that among people who had received treatment for substance abuse disorder, black clients were more likely to have been arrested on substance-related charges compared to white clients.  The rate of Fentanyl-related overdose deaths has risen most sharply for black and Latinx people, so we can only expect that drug-induced homicide legislation will disproportionately and negatively affect them.

There has been progress: The Massachusetts Supreme Court recently struck down a drug-induced homicide conviction.  The court argued that the prosecution did not provide sufficient evidence that Jesse Carrillo knew that the heroin he gave to a fellow student, Eric Sinacori, would cause a deadly overdose.  Similar arguments can be made for other cases.  Fentanyl has so contaminated the drug supply that it is hard to determine how much control individual sellers have on quality and content.  Promoting the use of tools like fentanyl test strips, which can allow people to check their drugs before selling or using drugs, should be promoted.  Indeed, when we recently collaborated with other researchers on a study of Rhode Islanders at risk of fentanyl overdose, we found that those with a history of drug dealing were among the most likely to use fentanyl test strips.

Punitive measures threaten the progress we have made on the overdose crisis.  They push people into the shadows, increase overdose risk and contribute to racial disparities.  If the authorities are serious about treating drug use as a public health issue, then they have to let go of this longstanding fixation on punishment.

November 20, 2019 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (2)

Thursday, November 14, 2019

Tales of extreme state drug mandatory minimums (and non-retroactive reforms) from Florida

The Miami Herald has this lengthy article discussing an array of extreme sentences resulting from Florida's (now somewhat reformed) mandatory minimum drug laws.  The piece is headlined "Hundreds languish in Florida prisons under outdated mandatory minimum drug sentences, " and I recommend it in full.  Here is a taste:

It’s not enough that Jomari DeLeon calls every day, asking her 8-year-old daughter about school and reminding her that “mommy misses you.” The child still asks when she’s coming home, believing her mom’s been gone all these years because of a stint in the military. That would explain the barbed wire surrounding the compound that she visits every month.

In reality, DeLeon is four hours away in this privately run women’s prison in the Panhandle town of Quincy, serving the third year of a 15-year sentence. If she had committed her drug crime in 2016, rather than eight years ago, she would be free by now. Up to 1,000 Florida inmates find themselves in the same legal purgatory....

[DeLeon was involved in two small non-violent drug] deals — a grand total of 48 pills for $225.... Under Florida law in 2013, the possession or sale of about 22 hydrocodone pills — less than one prescription’s worth — would trigger a trafficking sentence of 15 years...

Similar drug cases were playing out across the state. In Orange County in 2009, a man named William Forrester was handed a 15-year sentence for oxycodone trafficking after he was caught falsifying prescriptions to support his habit....

In 2010, a woman named Nancy Ortiz asked an Osceola judge that rehabilitation be included in her sentence to ease her addiction to crack. She had sold two bottles of hydrocodone pills to an undercover cop. Instead, the judge sentenced her to 25 years. “I take no pleasure in imposing this sentence,” the judge told Ortiz. “But I don’t have any discretion in the matter.”

For years, people caught with prescription painkillers in Florida received tougher penalties than those with the same weight in street drugs. In some cases, they received five times the sentence because that’s what the law required....

[P]ublic defenders from around the state went to Tallahassee to lobby the Legislature to change the law .. [and] even the state prosecutors’ association — those pursuing convictions for drug crimes — joined the public defenders in pursuit of lighter sentences for those selling prescription pills. MO<Finally, lawmakers listened. Sen. Rob Bradley, R-Fleming Island, a former prosecutor, sponsored a bill in 2014 that increased the number of hydrocodone or oxycodone pills needed to trigger the lengthy mandatory sentences. To get 15 years for hydrocodone, for example, would now take about 77 pills, rather than about 22....

The Legislature’s 2014 law could not apply to DeLeon’s sentence because, at the time, the Florida Constitution explicitly prohibited changes in sentencing laws to apply retroactively.... [That was changed in 2018 when] voters approved Amendment 11 last year.

At Gadsden Correctional Facility, it was cause for celebration. Another prisoner serving 15 years, also for hydrocodone, told DeLeon that the change in Florida’s Constitution could mean their freedom. “This is exactly what’s going to help us get out of here,” she told DeLeon. DeLeon’s family was so excited for her re-sentencing hearing, they started preparing for her to come home, buying canvasses for her to paint.

In July, however, the judge explained his hands were tied. Her motion for a new sentence was denied because state lawmakers first need to lay out a framework for judges to follow. It’s unclear when, or if, lawmakers will do so.

Earlier this year, lawmakers again increased the number of hydrocodone pills required to trigger mandatory sentences. Bradley, the state senator who sponsored the 2014 drug sentencing change, said he would be open to easing sentences for old drug cases. But he said he doesn’t consider it a priority....

Hundreds of people like DeLeon are in prison serving outdated sentences for hydrocodone or oxycodone trafficking that would not have been handed down if they committed the same crimes today.

One analysis by the Crime and Justice Institute, a nonpartisan group that’s done policy analysis for the Florida Senate, found that up to 640 current inmates fall into this category, while researchers with the Project on Accountable Justice housed at Florida State University found up to 935 inmates. Both estimates have not been previously published.

For one year, it costs Florida $20.7 million to incarcerate 935 people, according to “full operating cost” data from the Department of Corrections. Multiply that expense over their entire sentences, and the cost to taxpayers balloons to more than a hundred million dollars.

November 14, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 11, 2019

Ironies abound as Deputy AG complains about "whole categories of drug crimes ... being ignored and not enforced" by prosecutors

I just had some time today to review this notable speech delivered this past Friday by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  As always, I recommend the speech in full because there is too much in the DAG's remarks for me to reprint and engage them all here.  But, as I read though the speech's laments about the failure to enforce drug laws, I could not help but wonder if the DAG gave any thought to DOJ's own persistent disinclination to prosecute the many thousands of (federally illegal) recreational marijuana businesses that operate openly in nearly a dozen US states.  This thought was among the many ironies I saw as DAG Rosen in this speech praises federal crime fighting efforts while criticizing the work of some local prosecutors. Here are some extended excerpts followed by a bit more commentary:

At the Department of Justice, reducing violent crime is one of our top priorities....  So let me start this discussion about violent crime with this simple observation: To understand what works in combating crime, one need look no further than the highly successful efforts of state and federal law enforcement over recent decades.  In the early 1990s, crime reached an all-time high.  Violent crime and murder rates in particular had steadily increased over the preceding decades. Many major American cities and communities were not safe places to live or work.

In response to this troubling trend, legislatures increased penalties for gun offenders, prosecutors pursued stiff penalties for violent criminals, and the Department of Justice did its part by launching a series of nationwide initiatives to stem the tide of rising crime.  For instance, in 1991, the Department created Project Triggerlock, a highly successful program that vigorously pursued firearms cases by targeting the most-violent offenders.  A decade later, the Department launched Project Safe Neighborhoods or “PSN.”  As a crime reduction strategy, PSN focuses federal and state resources on the most pressing violent crime problems in our communities, and each district develops comprehensive solutions to address them....

After reaching a peak around 1993, crime steadily declined for the next 20-plus years.  Violent crime was cut in half.  A study published in 2009 concluded that PSN successfully reduced violent crime with case studies showing reductions as high as 42 percent in certain locations.

Unfortunately, after decades of improvement, a reversal took place, with stunning increases in violent crime in 2015 and 2016.  Homicides alone increased by more than 20 percent.  Concerned that we were at risk of losing ground, the incoming Trump Administration and the Justice Department snapped into action and returned to tried-and-true strategies for reducing crime.

In his first month in office, President Trump issued a series of executive orders “designed to restore safety in America.”  In response, the Attorney General announced the reinvigoration of Project Safe Neighborhood as a centerpiece of the Administration’s strategy to reduce violent crime.  In October 2017, Attorney General Sessions directed all 93 U.S. Attorneys to implement enhanced violent-crime reduction programs and to reinvigorate partnerships with state, local, and tribal law enforcement.... Since redoubling our efforts in this way, we have increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration. The joint state-and-federal efforts have worked, and the objective statistics prove it.

The FBI recently released its annual crime statistics for 2018, and, for the second consecutive year, the number of violent crimes decreased nationwide.  In 2018, the violent crime rate decreased 3.9 percent from 2017, and the rate for nearly every type of violent crime decreased as well....

Unfortunately, a dangerous trend is emerging that threatens to blunt the progress we’ve made in reducing crime.  Despite the obvious successes, a small but increasing number of state and local district attorneys have vowed not to enforce entire categories of core criminal offenses as part of a misguided experiment in social justice reform.  From Philadelphia in the East to Dallas in the middle and Seattle in the West, a curtain of non-enforcement policies has descended on some unfortunate cities and counties.

It’s a problem Attorney General Barr highlighted in a speech to the Fraternal Order of Police in August.  There, he spoke of “the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”

The radical decriminalization policies these social-reform DAs have publicly announced and implemented are truly shocking when they are made transparent.  Despite a decade of record-level drug overdose fatalities, whole categories of drug crimes, including several distribution offenses, are being ignored and not enforced.  Likewise, criminals who commit theft below certain thresholds, such as below $500, are given a free pass.  In several jurisdictions, reform DAs have effectively decriminalized prostitution, making it more difficult to fight human trafficking.  If those weren’t surprising enough, social-reform DAs have announced that the categories of malicious destruction of property, and shoplifting, will go unprosecuted.  The same with regard to criminal threats.  Even offenders who resist arrest and assault law enforcement officials are skating prosecution under these DAs’ non-enforcement policies.

At the Justice Department, we emphasize working closely with our state and local law enforcement colleagues.  But I am concerned that these social reform DAs are falling down on the job.  A prosecutor’s duty is straightforward — enforce the law fairly and impartially and keep the public safe.  By refusing to prosecute basic offenses, social reform DAs are failing to fulfill that vital obligation.  No society can have justice when stealing has been effectively licensed, open-air drug markets are allowed to flourish, and neither victim nor police officer trust that those who break the law will be held accountable....

Not only will these non-prosecution strategies inevitably make communities less safe, they also undermine our constitutional system of separation of powers.  It doesn’t take a law degree from a fine institution like Wake Forest to understand the principle that the legislative branch writes the law; the judicial branch interprets the law; and the executive branch enforces the law. District attorneys, of course, are part of the executive branch, responsible for enforcing the law. By refusing to prosecute broad swaths of core criminal offenses, social-reform DAs are ignoring duly-enacted laws in favor of their own personal notions of what they think the law should be....

Now, with regard to these DA’s personal policy preferences, let me turn briefly to the issue of prosecutorial discretion. There is no question that prosecutors have discretion to decide what cases to prosecute and how to spend their limited resources.  But these DAs are not making individualized decisions based on the facts and circumstances of particular cases. They are predetermining whole categories of offenses for non-enforcement.  They are effectively legislating through inaction.  And the offenses they are unilaterally striking from the books are not antiquated or rare; they are basic criminal laws directed at maintaining public safety.  These DAs’ decriminalization strategies go far beyond prosecutorial discretion and fly in the face of the fundamental concept that no one part of the government exercises total control of our legal system. If you believe in the rule of law, that is a problem....

Some have argued that recent criminal justice reform legislation like the First Step Act represents a repudiation of historical law enforcement practices.  Not so. There was wide bi-partisan support for the First Step Act.  Among other things, that legislation focuses on reducing recidivism, to help prevent future crimes. The Department of Justice and our Bureau of Prisons have made implementing that legislation a priority, as Attorney General Barr and I have both emphasized.

Let me give you a few illustrations: In addition to sentence reductions that have resulted in the release of more than 4,700 inmates, we have updated policies for inmates to obtain “compassionate release,” and since the Act was signed into law, 107 inmates have received compassionate release, compared to 34 in 2018.  We launched a pilot program that has allowed over 260 elderly or terminally-ill inmates to transition to home confinement.  We have further individualized drug-treatment plans, so about 16,000 inmates are now enrolled in recovery programs.  And to reduce recidivism, we are advancing re-entry programming to help past offenders find work and relaunch their lives.

But here is the key point about these improvements from the First Step Act: It is only because of the success of the law enforcement approaches of the last several decades that we had the opportunity to consider and implement these improvements to the criminal justice system. And a key part of fighting crime and protecting victims is helping to make sure that when these prisoners are released — as many of them will be, after serving their sentences — we give them the best possible chance at not re-offending. It’s about public safety, plain and simple....

Finally, let me address one other aspect of the non-enforcement policy problem.  Some defenders of reform DAs claim that the non-prosecution strategies merely reflect the will of the communities that elected them.  If that were so, one wonders why those communities’ legislators would not simply change the laws to reflect their constituents’ views. Indeed, one reason greater transparency about these non-enforcement policies is warranted is that it is far from clear that the public knows and wants prosecutors to tolerate crimes like burglary and theft without enforcement.

Do you think Americans really want prosecutors who won’t enforce whole categories of laws?  It can be hard to overlook that some of these social reform DAs were elected in low-turnout primaries backed by unusual funding from out-of-state ideological advocates.  But elections are up to voters, so I do not mean to address any individual jurisdiction or any particular DA; my question is what kind of system will we have if our laws are simply to be ignored?  And I am especially focused on the problem that non-enforcement policies present to the goal of continuing to reduce violent crime and make our communities safer.

I find jarring that this speech starts with an emphasis on making the reduction of violent crime a priority and then assails local DAs for giving less attention to non-violent crimes. It seems deeply misguided to say in blanket terms that "non-prosecution strategies inevitably make communities less safe" when the non-prosecution policy involves, say, low-level marijuana offices.  Of course, the biggest irony here is that the federal government for the last decade has been pursuing various "non-prosecution strategies" with respect to state-compliant federal marijuana offenses.  Notably, the range of non-enforcement policies adopted by the feds have obviously not undermined "the goal of continuing to reduce violent crime and make our communities safer."  But apparently, in the view of DAG Rosen, what is good for the (essentially unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Adding to the ironies here is DAG Rosen's praise and commitment to the FIRST STEP Act.  I am so very pleased to see DAG Rosen praise the reduction of thousands of federal sentences, the early releases to home confinement, the individualized drug-treatment plans, and other efforts to advance re-entry programming to help past offenders.  But I surmise that this work is in much harmony with what progressive prosecutors are committed to doing: finding alternatives to excessive prison terms, addressing public health problems like addiction outside the criminal justice system, and helping offenders "find work and relaunch their lives."  I also think progressive prosecutors would generally acknowledge that low crime rates help provide "the opportunity to consider and implement these improvements to the criminal justice system."  In other words, I believe progressive prosecutors are concerned about "public safety, plain and simple," but they reasonable believe that they can achieve that end without turning to law enforcement and the prison system to address every societal issue.

November 11, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, November 05, 2019

"Is the ‘War on Drugs’ Over? Arrest Statistics Say No"

The title of this post is the title of this new New York Times Upshot piece by Susan Stellin. Here are excerpts:

Despite bipartisan calls to treat drug addiction as a public health issue rather than as a crime — and despite the legalization of marijuana in more states — arrests for drugs increased again last year.

According to estimated crime statistics released by the F.B.I. in September, there were 1,654,282 arrests for drugs in 2018, a number that has increased every year since 2015, after declining over the previous decade. Meanwhile, arrests for violent crime and property crime have continued to trend downward.

Drugs have been the top reason people have been arrested in the United States for at least the past 10 years, and marijuana has been the top drug involved in those arrests. The percentage of drug arrests that have been for possession (instead of for sale or manufacturing charges) has also risen, to 86 percent last year from around 67 percent in 1989. And the majority of drug arrests have involved small quantities.

“We’ve gotten so used to the idea that this is normal to arrest so many people for tiny amounts of drugs, but it’s not normal,” said Joseph E. Kennedy, a professor at the University of North Carolina School of Law who was an author of a paper titled Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests.

Although many arrests don’t result in conviction — some are dismissed and some result in pleas to a lesser offense — any drug conviction can harm employment, housing and educational prospects. And this continues to disproportionately affect African-Americans and Hispanics, even as many conservatives have joined liberals in saying that racial disparities in the criminal justice system need to be addressed....

It’s not clear why drug arrests are rising after a downturn in those arrests from 2006 to 2015. It may reflect in part a tougher enforcement approach begun under Jeff Sessions by the current administration, even with respect to marijuana. Even in states where marijuana is legal, people can still be arrested if they violate state laws like limits on the amount allowed for personal use. And increasing use nationwide — perhaps with an assumption of more leniency — may put more people at risk of arrest. According to the 2018 National Survey on Drug Use and Health, 43.5 million people 12 and older used marijuana in the past year, a number that has risen since 2011.

Public opinion has shifted decisively in favor of marijuana legalization. But Chuck Wexler, executive director of the Police Executive Research Forum, pointed out that 39 states haven’t passed laws making recreational marijuana legal, and that police practices and attitudes toward drugs vary among law enforcement agencies across the nation. “Some departments still see arrest as a measure of productivity, even though many of us see that as outdated,” he said.

Mr. Wexler says the overdose epidemic has contributed to how police departments respond to drugs, particularly in communities that lack diversion programs like the one in Seattle. “Today you have more recognition that you need to get people into treatment, but treatment is expensive and resources aren’t equal around the country,” he said, adding that “in many parts of the U.S., arrest is viewed as the only alternative that they have.”...

Better data collection and reporting about drug arrests would help inform policy as attitudes toward the drug war shift, particularly with respect to marijuana. “Anyone who’s spending money and law enforcement resources on this needs to be keeping track of this data,” said Mr. Kennedy, the U.N.C. law professor. “We have a right to know who we are arresting.”

November 5, 2019 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (1)

Saturday, October 26, 2019

Retroactive application of Oklahoma sentencing reforms sets up record-setting day for commutations

This recent article from Oklahoma, headlined "‘Largest single-day commutation in nation’s history’ expected to take place in Oklahoma next month," reports on a notable example of an interesting process being used to make a criminal justice reform initiative retroactive in the Sooner state.  Here are the basic details:

More than 400 Oklahoma prison inmates are expected to pass through an “expedited” commutation process on Nov. 1, a number believed to be the largest one-day total in United States history, Oklahoma Pardon and Parole Board Executive Director Steve Bickley said.

The accelerated process is thanks to House Bill 1269, a bi-partisan bill which was passed this summer and made retroactive a number of criminal justice reforms that reclassified some drug and property crimes.

The new law goes into effect Nov. 1 and the Pardon and Parole Board is holding a special meeting that day where it will review nearly 900 inmates the law makes eligible for the expedited docket. “All the research I’ve done, this will be the largest single-day commutation in the nation’s history,” Bickley said....

The Nov. 1 hearing differs from the normal commutation process in a number of ways, Bickley said. Rather than the typical two-step process that often takes several months, the hearing is expected to take less than an hour. “It’s definitely going to be a much faster up-and-down process,” he said. Inmates who pass through the expedited process are expected to be released from prison in November.

Gov. Kevin Stitt, in a statement, offered praise for the entities preparing for the large number of commutations. “I applaud the hard work of the Pardon and Parole board and the staff as they prepare for this historic day. The board is wisely implementing a thorough process to ensure their actions on Nov. 1 reflect the intentions of Oklahomans who voted for State Question 780, while also prioritizing the safety of our communities. The Department of Corrections has also been a committed partner in putting people first in this process by hosting transition fairs inside state prisons to connect non-violent offenders with the resources they need to succeed when they re-enter society.”

When State Question 780 was made into law in 2016, it made possession of “personal use” amounts of most drugs a misdemeanor and upped the felony threshold for property crimes from $500 to $1,000.  But it wasn’t until the passage of HB 1269 earlier this year that those changes were made potentially retroactive for those still in prison for those crimes.

The new law mandates that, rather than strict retroactivity, the Pardon and Parole Board must decide which inmates affected by HB 1269 get an accelerated commutation and which inmates must go through the standard commutation process, Bickley said.

There are two dockets on Nov. 1, one for 793 inmates on the “drug possession” docket and one for 99 inmates on the “property crime” docket. Everyone on those two dockets is technically eligible for accelerated commutation, though the list will be whittled down extensively, Bickley said.

First, there are a number of inmates on the two lists who will not be recommended for accelerated commutation due to misconduct while in prison. Bickley said some inmates on the lists were involved in the events that led to the recent lockdowns at a number of state prisons, and those inmates would not receive recommendations. Additionally, district attorneys across the state can file challenges to specific commutations that may affect whether an inmate gets a recommendation, Bickley said, and as of Wednesday the Pardon and Parole Board had heard from only three of the more than 20 district attorneys across Oklahoma.

“And of course you could have some who receive recommendations and are signed off on by the governor, but they have additional sentences to serve or a detainer by another agency who will not be able to leave prison due to those factors,” Bickley said. Still, he expects “more than 400 and less than 500” inmates to be granted commutations by the end of the hearing, he said.

October 26, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 16, 2019

Another LWOP federal drug sentence reduced under § 3582(c)(1)(A) after FIRST STEP Act

Regular readers may already be tired of many prior posts in which I have made much of a key provision of the FIRST STEP Act that now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  But I continue to see value in highlighting developing jurisprudence under this provision largely because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

Last week, I flagged in this post a notable recent ruling in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), which rejected a § 3582(c)(1)(A) motion to reduce an extreme sentence for a federal drug offender.  Today, thanks to seeing this press report headlined "Judge in Oregon grants compassionate release for 76-year-old man serving life sentence for drug conspiracy," I can report on a successful § 3582(c)(1)(A) motion to reduce an extreme (LWOP) sentence for a federal drug offender.  The ruling US v. Soears, No. 3:98-cr-0208-SI-22, 2019 WL 5190877 (D. Ore. Oct. 15, 2019), is well described in the above-linked press piece:

A judge has ordered the release of a 76-year-old man who was sentenced to life and served nearly 21 years behind bars for running a large cocaine distribution ring, finding he meets the “extraordinary and compelling’’ reasons for compassionate release.

Despite objections from prosecutors, U.S. Judge Michael H. Simon found Adolph Spears Sr. suffers from potentially terminal health problems and is no longer a danger to the community. "In light of the age of Spears’ previous convictions, Spears’ age, and Spears’ physical and medical condition, the Court does not find that at this time Spears poses a significant risk to the community," Simon wrote in a 13-page opinion Tuesday.

The judge’s ruling is a direct result of changes to federal law from a criminal justice bill called the First Step Act, which passed late last year and allows federal courts to directly reduce sentences if an inmate meets the criteria for compassionate release....

Because of his medical problems, Spears was moved in May from the federal prison in Sheridan to the Butner Medical Facility in North Carolina. "While he has been at Butner, family members have made regular cross-country visits to see him, believing that each one may be the last," his defense lawyer Lisa Ludwig wrote to the court. "Allowing him to spend the time he has left being cared for by the family who loves him will be an act of compassion to Mr. Spears, but also to the family who cares so deeply for him."

Spears has multiple chronic serious medical ailments, a limited life expectancy and depends on a wheelchair to get around, according to one of his medical experts. He was diagnosed with an aggressive form of prostate cancer in June 2018. He also suffers from poorly controlled diabetes, cataracts, pain from spinal surgery, chronic kidney disease, limited mobility and difficulty swallowing. Three of his daughters, a daughter-in-law and granddaughters have offered to house Spears if he’s released and provide medical and financial support.

Spears submitted his release request to the prisons bureau on Sept. 13, the same day he filed a motion with the court. On Sept. 30, the prisons bureau denied Spears’ request, and said he could appeal or wait until 30 days after his initial request was made to file a motion with the court. The judge said he waited until Tuesday, more than 30 days after Spears made his request to the prisons bureau, to consider the motion.

The judge said Spears’ deteriorating physical health met the requirements for compassionate release, and said it appeared that the federal prisons bureau failed to consider anything beyond whether Spears had a terminal illness. The U.S. probation office, at the judge’s request, approved the home of one of Spears’ daughters for his release, finding her suitable as his caregiver.

Prosecutors had argued that Spears remains a danger, largely because he was convicted of a significant drug conspiracy and he possessed guns during his drug trafficking activities. He also previously was convicted of conspiracy to commit murder and was sentenced to 25 years after he offered a man $500 to burn down an IRS agent’s house while he was being investigated in 1978 for tax evasion, according to court records.

Federal prosecutors argued that Spears’ age and medical condition don’t render him "so incapacitated" that he couldn’t resume his criminal conduct, pointing out he was leading a drug ring in his late 50s. Simon said he took into account Spears’ criminal history but noted that Spears’ most recent drug conviction is more than 19 years old and his last conviction for a crime of violence is more than 40 years old.

It’s unlikely Spears would have faced as serious a sentence today if convicted of the same conduct, Simon noted. He was convicted of distributing crack cocaine when sentences for such drug crimes were much higher and judges had less discretion, Simon wrote. Since then, Congress has made changes to avoid sentencing disparities in such drug cases. The judge said he’ll order new conditions for Spears’ release and a lifetime of federal supervision.

Some prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

October 16, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, October 07, 2019

Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics

Via a series of posts last year, I was able to report updates from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this 2017 post, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic. 

I now see that the Chicago Tribune has this new lengthy article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison." which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full, and here are excerpts:

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison. He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decadeslong prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary.

Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.

The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling. While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

While the cases hadn’t been thrown out of court, Alison Siegler, the Federal Criminal Justice Clinic’s founder, noted in an April report to the 7th Circuit Bar Association that "the U.S. Attorney’s Office and the ATF have entirely stopped bringing stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere in the country.”

Some prior related posts:

October 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, October 04, 2019

Mass Supreme Judicial Court vacates manslaughter conviction based on merely providing heroin to person who overdosed

As reported in this local article, the top court in Massachusetts has vacated "the involuntary manslaughter conviction of a man who provided drugs in a fatal overdose."  Here is the context and commentary from the press piece: 

Jesse Carrillo was convicted two years ago for the 2013 fatal heroin overdose of fellow UMass Amherst student Eric Sinacori, who was 20 when he died. On Thursday, the state's Supreme Judicial Court vacated Carrillo's manslaughter conviction, arguing that the prosecution did not provide sufficient evidence that Carrillo knew the heroin would cause a fatal overdose.

Northwestern District Attorney David Sullivan said in a statement that it's "disheartening that the Supreme Judicial Court does not believe heroin use carries a high probability of substantial harm or death." He added: "The families who have lost loved ones to this brutal epidemic would surely disagree with the Court’s analysis, as do we.”

But Northeastern University law professor Leo Beletsky says if the case were upheld, it would have set a dangerous precedent. "If the government could charge every person who shares drugs with someone who subsequently dies, the way that the government had argued this case previously would essentially turn those friends, those partners, those co-users into potential murderers," he said.

The full unanimous ruling of the Massachusetts Supreme Judicial Court is available at this link, and it my be of particular interest to law profs and 1Ls now getting to the homicide unit in their CrimLaw classes (and to many others). Here are excerpts from the opinion's introduction: 

To find a defendant guilty of involuntary manslaughter caused by wanton or reckless conduct, our case law requires proof beyond a reasonable doubt that the defendant engaged in conduct that creates "a high degree of likelihood that substantial harm will result to another."  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  Selling or giving heroin to another person may be wanton or reckless conduct where, under the circumstances, there is a high degree of likelihood that the person will suffer substantial harm, such as an overdose or death, from the use of those drugs.  And in many cases the circumstances surrounding the distribution of heroin will permit a rational finder of fact to find beyond a reasonable doubt that the transfer of heroin created a high degree of likelihood of substantial harm, such as an overdose or death. But not every case will present circumstances that make such conduct "wanton or reckless." This is one such case.

We conclude that the mere possibility that the transfer of heroin will result in an overdose does not suffice to meet the standard of wanton or reckless conduct under our law. The Commonwealth must introduce evidence showing that, considering the totality of the particular circumstances, the defendant knew or should have known that his or her conduct created a high degree of likelihood of substantial harm, such as an overdose or death.

Here, no evidence was presented during the Commonwealth's case-in-chief that would permit a reasonable jury to conclude that the inherent possibility of substantial harm arising from the use of heroin -- which is present in any distribution of heroin -- had been increased by specific circumstances to create a high degree of likelihood of substantial harm.  For instance, the Commonwealth did not present evidence that the defendant knew or should have known that the heroin was unusually potent or laced with fentanyl; evidence that Sinacori was particularly vulnerable to an overdose because of his age, use of other drugs, or prior overdoses; or evidence that the defendant knew or should have known that Sinacori had overdosed but failed to seek help.  In the absence of any such evidence, we conclude that the Commonwealth did not meet its burden of producing sufficient evidence for a reasonable jury to conclude that the defendant's conduct in this case created a high degree of likelihood that Sinacori would suffer substantial harm, such as an overdose or death, from his use of the heroin.  The defendant's conviction of involuntary manslaughter must therefore be vacated, and a required finding of not guilty entered.

As many of my former students likely recall, the Welansky case is still one of my favorite cases to teach during 1L Criminal Law. I find it fascinating to see that tragic case and the legal precedent that it set still of great importance 75 years later in very different sad setting.

October 4, 2019 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, October 03, 2019

US District Judge rejects feds lawsuit to enjoin operation of proposed safe injection site for opioid users in Philadelphia

As reported in this NPR piece, a federal judge "has ruled that a Philadelphia nonprofit group's plan to open the first site in the U.S. where people can use illegal opioids under medical supervision does not violate federal drug laws, delivering a major setback to Justice Department lawyers who launched a legal challenge to block the facility." Here is more about the important ruling:

U.S. District Judge Gerald McHugh ruled Wednesday that Safehouse's plan to allow people to bring in their own drugs and use them in a medical facility to help combat fatal overdoses does not violate the Controlled Substances Act. "The ultimate goal of Safehouse's proposed operation is to reduce drug use, not facilitate it," McHugh wrote in his opinion, which represents the first legal decision about whether supervised injection sites can be legally permissible under U.S. law.

The decision means that the country's first supervised injection site, or what advocates call an "overdose prevention site," can go forward. Justice Department prosecutors had sued to block the site, calling the proposal "in-your-face illegal activity."

While local officials from New York to San Francisco praised the decision, the federal government is expected to appeal. "The Department of Justice remains committed to preventing illegal drug injection sites from opening," said Bill McSwain, U.S. Attorney for the eastern district of Pennsylvania. "Today's opinion is merely the first step in a much longer legal process that will play out. This case is obviously far from over."

Most studies show that the supervised injection sites can drive down fatal overdoses. These sites are credited with restricting the spread of infectious diseases. And advocates say the facilities help move more people into treatment. The American Medical Association has endorsed launching supervised injection site pilot programs.

Ronda Goldfein, who is Safehouse's vice president and secretary, said winning judicial approval is a major feat for advocates of the proposed site, which also has the backing of top city officials and former Pennsylvania governor Ed Rendell. "Philadelphia is being devastated. We've lost about three people a day" to opioid overdoses, Goldfein said. "And we say we had to do something better and we couldn't sit back and let that death toll rise. And the court agreed with us."...

Supervised injection sites exist in Canada and Europe, but no such site has gotten legal permission to open in the U.S. Cities like New York, Denver and Seattle have been publicly debating similar proposals, but many were waiting for the outcome of the court battle in Philadelphia. Attorneys general from Washington, D.C., and seven states including Michigan, New Mexico and Oregon, in addition to city leaders in five cities, urged the court before the decision to rule in favor of Safehouse.

Legal hurdles are not Safehouse's only obstacles. The facility is planning to launch in the Philadelphia neighborhood of Kensington, which has been ravaged by the opioid crisis, but some neighbors have resisted welcoming an injection site into their community. Community activist Amanda Fury said the court decision will not change the hardened battle lines over this issue there. "I've never been in the business of trying to change people's minds on this," said Fury, who supports the measure but admits that residents are divided....

In court, meanwhile, prosecutors have contended that the plan violated a provision of the Controlled Substances Act that makes it illegal to own a property where drugs are being used — known as "the crack house statute." But backers of Safehouse argued the law was outdated and not written to prevent the opening of a medical facility aimed at saving lives in the midst of the opioid crisis....

On Wednesday, in a move that surprised observers, McHugh agreed. He wrote that there "is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse." McHugh rejected federal prosecutor's view that this was an open-and-shut case of a proposal clearly violating federal drug statutes. Instead, he noted that the purpose of Safehouse is not to provide a place for people to engage in unlawful activity. "Viewed objectively, what Safehouse proposes is far closer to the harm reduction strategies expressly endorsed by Congress," McHugh wrote.

The full opinion in US v. Safehouse is available at this link, and it makes for a very interesting read. These part of the opinion's introduction highlights how notions of judicial modesty in application of criminal law moved Judge McHugh:

As discussed below, courts must exercise extreme care in discerning the objective sought by Congress in enacting a statute.  That said, having reviewed materials I consider appropriate in discerning what Congress sought to address in enacting § 856(a)(2), there is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse.  Although the language, taken to its broadest extent, can certainly be interpreted to apply to Safehouse’s proposed safe injection site, to attribute such meaning to the legislators who adopted the language is illusory.  Safe injection sites were not considered by Congress and could not have been, because their use as a possible harm reduction strategy among opioid users had not yet entered public discourse.  Particularly in the area of criminal law, it is the province of Congress to determine what is worthy of sanction.  A line of authority dating back to Chief Justice John Marshall cautions courts against claiming power that properly rests with the legislative branch.  A responsible use of judicial power under those circumstances is to decline to expand the scope of criminal liability under the statute and allow Congress to address the issue.

The US Deputy Attorney General released this statement following this ruling, which states "The Department is disappointed in the Court’s ruling and will take all available steps to pursue further judicial review. Any attempt to open illicit drug injection sites in other jurisdictions while this case is pending will continue to be met with immediate action by the Department."

October 3, 2019 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Thursday, September 19, 2019

Prez candidate Beto O'Rourke proposes "Drug War Justice Grants" funding by marijuana tax revenues

As reported in this Hill piece,"President hopeful Beto O'Rourke on Thursday unveiled a plan to legalize marijuana and end the war on drugs." Here are the basics:

The former Texas congressman would grant clemency to those currently serving sentences for marijuana possession, establish a model for marijuana legalization and give grants to those affected by the war on drugs to help them benefit from the new industry.

The “Drug War Justice Grants” would be given to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison. Licenses to produce, distribute, or sell marijuana would be funneled to minority-owned businesses and fees would be waived for low-income individuals who had previously been convicted of related offenses.

“We need to not only end the prohibition on marijuana, but also repair the damage done to the communities of color disproportionately locked up in our criminal justice system or locked out of opportunity because of the War on Drugs,” O'Rourke said in a statement.

This page on the O'Rourke campaign website provides some background and details, and here are excerpts focused on criminal justice matters:

In January 2009, Beto O’Rourke, one of the youngest members of the El Paso City Council, introduced a longshot resolution calling for an “honest, open national debate” on ending the prohibition of marijuana.... To Beto’s surprise, the resolution passed unanimously. But the mayor vetoed the resolution later that day....

In 2011, Beto published the book Dealing Death and Drugs: The Big Business of Dope in the U.S. and Mexico: An Argument for Ending the Prohibition of Marijuana. Long before the legalization of marijuana was overwhelmingly popular with the American public, Beto laid out his case for ending the decades-long prohibition on marijuana and repairing the damage done to the communities of color that are disproportionately impacted....

The War on Drugs has been catastrophic for communities of color, and our policy toward marijuana has been particularly egregious. Despite similar rates of use, African-Americans are almost 4 times more likely to be arrested for marijuana possession than white people. Yet, a 2017 survey of marijuana business owners in states allowing them found that only 19% identified as non-white. These statistics tell the story of marijuana laws in our country, where certain communities have been subjected to over-policing and criminalization while others are being presented lucrative business opportunities. Beto is committed to rewriting this story and rectifying the harm caused by decades of unjust marijuana policy.

As President, Beto will:

Legalize Marijuana...

Use clemency power to release those currently serving sentences for marijuana possession and establish a review board to determine whether others currently serving sentences related to marijuana should be released;

Expunge the records of those who have been convicted for possession and prevent the conviction from precluding these individuals from accessing housing, employment, education, and federal benefits, or from having their driver’s licenses suspended;...

Remove cannabis-related charges as grounds for deportation or denial of citizenship. The Trump Administration has explicitly targeted those with marijuana possession convictions for deportation, even though marijuana has been legalized in 11 states and the District of Columbia.

Invest revenue from the marijuana industry in communities impacted by the War on Drugs through “Drug War Justice Grants” and Equitable Licensing Programs....

To guarantee that opportunities to profit from a regulated marijuana market are made available to communities disproportionately impacted by the War on Drugs, Beto will:

Call for a federal tax on the marijuana industry, revenue from which will be used to:

Provide a monthly “Drug War Justice Grant” to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison for a period based on time served. The grants will be funded completely by the tax on the marijuana industry.

Fund substance use treatment programs.

Support re-entry services for those who have been incarcerated for possession.

Invest in communities disproportionately impacted by marijuana arrests, including investments in housing and employment support, substance use and mental health treatment, peer and recovery support services, life skills training, victims’ services.

Support those disproportionately impacted by marijuana arrests, including those who have been convicted of marijuana possession themselves in participating in the marijuana businesses by providing technical assistance, industry-specific training, access to interest free/low-interest loans, and access to investment financing and legal services.

Ensure those most impacted by the War on Drugs are the ones benefiting from the economic activity related to marijuna.

As President, Beto will tie federal funding for criminal justice systems to requirements that states or local governments:

Waive licensing fees for producing, distributing, or selling marijuana for low-income individuals who have been convicted of marijuana offenses.

September 19, 2019 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)