Monday, July 26, 2021

Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity?

At last month's Senate Judiciary Committee Hearing on "Examining Federal Sentencing for Crack and Powder Cocaine," the Biden Administration through the testimony of Regina LaBelle rightly stated that the crack-powder sentencing disparity produces "significant injustice":

The Biden-Harris Administration strongly supports eliminating the current disparity in sentencing between crack cocaine and powder cocaine.  The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color.  The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.  Therefore, the Administration urges the swift passage of the “Eliminating a Quantifiably Unjust Application of the Law Act,” or the “EQUAL Act.”

In addition, the US Department of Justice submitted testimony (linked below) that rightly stated that "it is long past time" to end the crack-powder sentencing disparity:

The Department strongly supports the legislation, for we believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those involving powder cocaine.  The crack/powder sentencing disparity has unquestionably led to unjustified differences in sentences for trafficking in two forms of the same substance, as well as unwarranted racial disparities in its application.  The sentencing disparity was based on misinformation about the pharmacology of cocaine and its effects, and it is unnecessary to address the genuine and critical societal problems associated with trafficking cocaine, including violent crime.

Download DOJ EQUAL Act Testimony- FINAL

In light of these forceful statements, I have been optimistic that the EQUAL Act might move forward in Congress fairly soon even though the pace of congressional action is always uncertain.  At the same time, I hoped that federal prosecutors under the authority of Attorney General Garland might do what they could ASAP, in the exercise of their charging and sentencing authority, to minimize the impact of the crack-powder disparity as Congress works on a permanent legislative fix.  After all, if DOJ really believes that "it is long past time to end the disparity" and that the disparity is based on "misinformation" which produces "unwarranted racial disparities," then a department purportedly committed to justice surely ought not keep charging crack mandatory minimums and advocating for guideline sentences based on this disparity.

But I have heard from defense attorneys in the know that statements about existing crack sentencing provisions creating "significant injustice in our legal system" have seemingly not trickled down to federal prosecutors, who are still generally charging crack mandatory minimums and arguing for within-guideline crack sentences.  And I have be authorized to share this recent statement from the Federal Defenders to DOJ: "We were glad to see the Department’s recent support for legislation to end the crack-powder disparity but reports from the field indicate that line prosecutors continue to indict mandatory-minimum crack cases and seek guideline sentences that rely on the discredited ratio."

Talking the talk to Congress about reform is an important aspect of what the executive branch can do to improve our justice system. But the Justice Department can and should also be expected to walk the walk.  But so far, it seems, federal prosecutors are not really ready to give up the crack-powder disparity, even though DOJ asserts that "it is long past time" to do so. Sigh.

July 26, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, July 22, 2021

House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

At a time of problematic and often ugly partisanship inside the Beltway, I have continued to believe and hope that a number of federal sentencing reforms could and should still be able to secure significant bipartisan support.  This belief was reinforced yesterday when the House Judiciary Committee voted 36 to 5 to advance the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  Excitingly, not only does this bill reduce crack statutory sentences to the level of powder cocaine offenses, it also provides for all previously convicted crack offenders to obtain a resentencing.  (Recall that neither the Fair Sentencing Act of 2010 nor the FIRST STEP Act of 2018 included full retroactivity for the sentencing reductions in those reform bills.)

I want to believe that the overwhelming vote in support of the EQUAL Act in the House Judiciary Committee means that a vote a passage by the full House will be coming soon.  I also want to believe that the bill, which also has bipartisan Senate support, could move efficiently through the upper chamber and become law this year.  But, because the politics and ways of Congress are always mysterious, I am not assuming passage is a sure thing and I have no idea what the timeline for the bill's potential progress will be going forward.  All I know is that it is now more than a quarter-century since the US Sentencing Commission first explained to Congress why a big crack/powder sentencing difference was unjustified and unjust, so the EQUAL Act cannot become law too soon and is way too late.  But better late than never, I still hope.

Notably, we are already approaching three years since passage of the FIRST STEP Act and there is yet to be a next step.  Though I would like to see many more statutory sentencing reform steps from Congress that go far beyond the EQUAL Act, I still think reforms can and should be happy right now with even baby steps in the right direction from a divided Congress.  And,  critically, the EQUAL Act would be a consequential baby step: USSC data indicate that more than 8000 people are in federal prison for crack offenses now and that more than 100 people are sentenced on crack offenses each month.  So literally thousands of people will be impacted if the EQUAL Act becomes law, and then, if/when this reform is finally achieved, we can work on correcting the next and the next and the next injustice baked into federal sentencing law and practice. 

A few prior related posts:

July 22, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, July 21, 2021

Highlighting the drug war's continuing extraordinary toll on people of color

The AP has this lengthy new piece headlined "50-year war on drugs imprisoned millions of Black Americans."  I am a bit troubled by the use of the past tense in the headline because the casualties of the drug war continue to grow every minute of every day we rely on the criminal justice system to deal with drug issues. But, headline quibble aside, this extended AP piece is worth a full read, and here are excerpts:

Fifty years ago this summer, President Richard Nixon declared a war on drugs.  Today, with the U.S. mired in a deadly opioid epidemic that did not abate during the coronavirus pandemic’s worst days, it is questionable whether anyone won the war.

Yet the loser is clear: Black and Latino Americans, their families and their communities.  A key weapon was the imposition of mandatory minimums in prison sentencing.  Decades later those harsh federal and state penalties led to an increase in the prison industrial complex that saw millions of people, primarily of color, locked up and shut out of the American dream.

An Associated Press review of federal and state incarceration data shows that, between 1975 and 2019, the U.S. prison population jumped from 240,593 to 1.43 million Americans. Among them, about 1 in 5 people were incarcerated with a drug offense listed as their most serious crime.

The racial disparities reveal the war’s uneven toll. Following the passage of stiffer penalties for crack cocaine and other drugs, the Black incarceration rate in America exploded from about 600 per 100,000 people in 1970 to 1,808 in 2000.  In the same timespan, the rate for the Latino population grew from 208 per 100,000 people to 615, while the white incarceration rate grew from 103 per 100,000 people to 242....

Although Nixon declared the war on drugs on June 17, 1971, the U.S. already had lots of practice imposing drug prohibitions that had racially skewed impacts. The arrival of Chinese migrants in the 1800s saw the rise of criminalizing opium that migrants brought with them. Cannabis went from being called “reefer” to “marijuana,” as a way to associate the plant with Mexican migrants arriving in the U.S. in the 1930s.

By the time Nixon sought reelection amid the anti-Vietnam War and Black power movements, criminalizing heroin was a way to target activists and hippies. One of Nixon’s domestic policy aides, John Ehrlichman, admitted as much about the war on drugs in a 22-year-old interview published by Harper’s Magazine in 2016.

Experts say Nixon’s successors, Ronald Reagan, George H.W. Bush and Bill Clinton, leveraged drug war policies in the following decades to their own political advantage, cementing the drug war’s legacy. The explosion of the U.S. incarceration rate, the expansion of public and private prison systems and the militarization of local police forces are all outgrowths of the drug war.

Federal policies, such as mandatory minimum sentencing for drug offenses, were mirrored in state legislatures.  Lawmakers also adopted felony disenfranchisement, while also imposing employment and other social barriers for people caught in drug sweeps.

The domestic anti-drug policies were widely accepted, mostly because the use of illicit drugs, including crack cocaine in the late 1980s, was accompanied by an alarming spike in homicides and other violent crimes nationwide.  Those policies had the backing of Black clergy and the Congressional Black Caucus, the group of African-American lawmakers whose constituents demanded solutions and resources to stem the violent heroin and crack scourges.

“I think people often flatten this conversation,” said Kassandra Frederique, executive director of the Drug Policy Alliance, a New York-based nonprofit organization pushing decriminalization and safe drug use policies. “If you’re a Black leader 30 years ago, you’re grabbing for the first (solution) in front of you,” said Frederique, who is Black.  “A lot of folks in our community said, ‘OK, get these drug dealers out of our communities, get this crack out of our neighborhood. But also, give us treatment so we can help folks.’” The heavy hand of law enforcement came without addiction prevention resources, she said.

July 21, 2021 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, July 14, 2021

Prez Biden names new drug czar just in time for latest disconcerting accounting of drug overdose casualties

Sub-buzz-10462-1626268647-10As reported in this Politico piece, the "Biden administration is tapping Rahul Gupta as its top drug policy official, charging the former West Virginia public health commissioner with leading federal efforts to combat a spiraling addiction crisis.  In some drug reform quarters, Gupta's appointment is being celebrated as evidenced by this Marijuana Moment piece headlined "Biden Selects White House Drug Czar Who Helped Implement State Marijuana Program And Touted Medical Benefits."  But this new Filter article about the appointment strikes a much more wary tone:

Filter broke the news in March that Gupta was the leading candidate for the role, reporting that harm reduction experts and activists have been critical of his drug policy record. In 2018, he supported the closure of a low-barrier syringe service program.  West Virginia is not only struggling to prevent soaring overdose deaths, but is now facing multiple outbreaks of HIV and hepatitis C, driven by a lack of harm reduction infrastructure and access to sterile syringes for people who use drugs.  In February, the Centers for Disease Control and Prevention described Kanawha County’s HIV outbreak as “the most concerning in the United States.”

It remains to be seen whether as “drug czar” Gupta will take more pro-harm reduction positions and support local harm reduction organizations that are facing political backlash across the country.

“The Biden Administration has made enhancing evidence-based harm reduction efforts one of ONDCP’s top priorities,” Robin Pollini, associate professor at West Virginia University’s Department of Behavioral Medicine & Psychiatry, told Filter.  “I sincerely hope Dr. Gupta will embrace the opportunity to lead on that issue.  And I would ask that he bring that leadership without delay back to West Virginia, where anti-harm reduction laws at both the state and local levels are literally killing our loved ones, friends, and neighbors.”

Gupta is set to take on the federal government’s top drug policy job during a historic year of record-breaking overdose deaths, driven primarily by the presence of illicitly manufactured fentanyl in the unregulated drug supply, as well as stimulants like methamphetamine.

This last sentence from the Filter piece foreshadowed this morning's headlines with the latest reports on just how bad the numbers were on overdose deaths in 2020. Here are a couple of the reports:

From BuzzFeed News, "More People Than Ever Died Of Drug Overdoses In The US In 2020"

From the Wall Street Journal, "U.S. Drug-Overdose Deaths Soared Nearly 30% in 2020, Driven by Synthetic Opioids"

These press reports on the latest 2020 overdose death data draw from this CDC page with more details.  There is an interesting map on the CDC page showing state-by-state overdose numbers  in 2019 and 2020.  Remarkably, two states saw declines in overdose deaths in 2020, New Hampshire and South Dakota.  But, even more remarkably, neighboring Vermont and Nebraska saw huge increases in overdose deaths in 2020.  Sadly, it is hard to find any clear pattern in all the state data except lots of death.

July 14, 2021 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

What legally distinguishes a "non-violent Federal cannabis offense" from a violent one (and would multiple SCOTUS rulings be needed to sort this out)?

Legal Marijuana Oregon Measure 91The question in the title of this post is prompted by key language in the resentencing and expungement provision of the "discussion draft" of Senate Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this CAO "discussion draft" is available here; this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy (see coverage here at MLP&R).  Of course, I am distinctly interested in the criminal justice provisions of this bill, and I was excited to see there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT."  But the CAOA bill draft includes a notable (and I think problematic) linguistic limit on the reach of resentencing and expungement.

Specifically, the main expungement provision of the CAOA calls for automatic expungement of only a "non-violent Federal cannabis offense."  CAO sec. 311(a)(1) (emphasis added).  Similarly, the provision allowing for "sentencing review" states:

For any individual who is under a criminal justice sentence for a non-violent Federal cannabis offense, the court that imposed the sentence shall, on motion of the individual, the Director of the Bureau of Prisons, the attorney for the Government, or the court, conduct a sentencing review hearing.  If the individual is indigent, counsel shall be appointed to represent the individual in any sentencing review proceedings under this subsection.

CAO sec. 311(b)(1) (emphasis added).  I really like the provision requiring the appointment of counsel for these "sentencing review proceedings."  But I wonder and worry that, if this provision were to become law, counsel might be spending way too much time just figuring out whether prospective clients qualify as "non-violent" federal cannabis offenders. 

Though we all often use terms like violent and non-violent as offense descriptors, federal criminal justice practitioners know all too well that there is never-ending litigation in the context of many other federal statutes and provisions concerning whether certain prior offenses qualify as "violent" or not.  (Frustrated by just one small piece of this litigation, I joked in this post that one of the circles of hell set forth in Dante's Inferno surely involved trying to figure out what kinds of past offenses can or cannot be properly labeled "violent.")

Especially troublesome in this context is the realty that, technically, all basic federal drug offenses are "non-violent" because there are not any formal elements of these offenses that require any proof of force or injury.  And yet, more than a few "drug warriors" have been heard to say that all drug crimes are by their very nature violent and that the only types of  drug offenders who get the attention of federal prosecutors are those who have a violent history or violent tendencies.  Consequently, I would expect that federal defense attorneys would have a basis to argue that every  "Federal cannabis offense" qualifies as non-violent, while federal prosecutors would likely contend that at least some (many?) federal cannabis offenders are to be excluded by this "non-violent" limit in the bill text.

I suspect that this section of the Cannabis Administration and Opportunity Act was just drawn from similar language in the House version of proposed federal marijuana reform (section 10 of the MORE Act), and the CAOA's current status as a "discussion draft" should provide an opportunity to clean up this problematic adjective.  Though I understand the political reason for wanting to distinguish less and more serious drug offenders for expungement and resentencing provisions, the "non-violent" terminology seems to me quite legally problematic.  (There are other aspects of the "RESENTENCING AND EXPUNGEMENT" section of this new bill that are far from ideal, but this terminology struck me as the biggest red flag.)

Some related work in this space:

A few of many prior recent related posts:

July 14, 2021 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1)

Thursday, July 08, 2021

"Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices"

Crim12275-fig-0007-mThe title of this post is the title of this important and impressive new empirical federal criminal justice research just published in Criminology and authored by Mona Lynch, Matt Barno and Marisa Omori. Here is the article's abstract:

The current study examines how key internal U.S. Department of Justice (DOJ) policy changes have been translated into front-line prosecutorial practices. Extending courts-as-communities scholarship and research on policy implementation practices, we use U.S. Sentencing Commission data from 2004 to 2019 to model outcomes for several measures of prosecutorial discretion in federal drug trafficking cases, including the use of mandatory minimum charges and prosecutor-endorsed departures, to test the impact of the policy changes on case processing outcomes. We contrast prosecutorial measures with measures that are more impervious to discretionary manipulation, such as criminal history, and those that represent judicial and blended discretion, including judicial departures and final sentence lengths. We find a significant effect of the policy reforms on how prosecutorial tools are used across DOJ policy periods, and we find variation across districts as a function of contextual conditions, consistent with the court communities literature. We also find that a powerful driver of changes in prosecutorial practices during our most recent period is the confirmation of individual Trump-appointed U.S. Attorneys at the district level, suggesting an important theoretical place for midlevel actors in policy translation and implementation.

This article includes a data set of over 300,000(!) federal drug cases, and the findings are extremely rich and detailed. I have reprinted one of many interesting charts above, and here is the article's concluding paragraphs (without references):

Recent developments call into question whether the existing workgroup dynamics in the federal system that we have documented here — with prosecutors generally pushing for more punitive outcomes, and judges and defense attorneys acting as a counter to this punitiveness — are likely to persist in the future.  Although there was bipartisan Congressional support for the First Step Act, suggesting that the late twentieth-century punitive policies may continue to wane in appeal, the federal criminal system has also undergone significant change, particularly in the judiciary where lifetime appointments prevail.  The Trump administration was extremely active in appointing new judges to existing vacancies, and as a result, nearly a quarter of active federal judges were appointed during his presidency.  Given the conservative political leanings of many of these judges, it is fair to question whether these judges might in fact oppose a move toward less punitive practices among federal prosecutors.

Even if the Biden administration is successful in scaling back punitive policies and installs U.S. Attorneys who are in ideological alignment with such reforms, prosecutorial power is not limitless in determining case outcomes.  Under advisory guidelines, judges have considerable power to sentence above the guidelines, as long as it is within the generous statutory limits that characterize federal criminal law.  In the face of this possibility, federal prosecutors may opt to exercise their most powerful tool—the discretionary decision to file charges, or not.  Thus, should the dynamics shift to where the current roles are reversed, prosecutors could come to rely on their discretion not to charge in those drug cases where they seek to eliminate the chance that those potential defendants receive long sentences.  In any case, as our results suggest, we should expect that any potential future conflicts among federal prosecutors and judges are likely to play out differently across different court contexts, depending on the conditions and make-up of each local district.

July 8, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Tuesday, June 22, 2021

Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack

While awaiting the start of this morning's US Senate Judiciary Committee hearing ,"Examining Federal Sentencing for Crack and Powder Cocaine," at which it seems there will be considerable advocacy for lowering crack cocaine sentences to finally be in parity with powder cocaine sentence (basics here), I thought to look through some of the archives of the Federal Sentencing Reporter to see how many articles have have had folks discussing (and often sharply criticizing) crack sentences. 

Because crack sentencing rules have been subject to so much justified criticism and seen modest reform in recent years, the number of FSR articles on this topic feels more than a bit overwhelming.  Here is an abridged list of articles that caught my eye to show the varied list of authors and laments through the years:

From 1990 by Deborah Young, "Rethinking the Commission's Drug Guidelines: Courier Cases Where Quantity Overstates Culpability

From 1992 by Catharine M. Goodwin, "Sentencing Narcotics Cases Where Drug Amount Is a Poor Indicator of Relative Culpability"

From 1992 by Robert S. Mueller, "Mandatory Minimum Sentencing"

From 1993 by Ronald F. Wright, "Drug Sentences as a Reform Priority"

From 1993 by Richard Berk, "Preliminary Data on Race and Crack Charging Practices in Los Angeles"

From 1994 by Marc Miller and Daniel J. Freed, "The Disproportionate Imprisonment of Low-Level Drug Offenders"

From 1995 by David Yellen, "Reforming Cocaine Sentencing: The New Commission Speaks"

From 1998 by Carol A. Bergman, "The Politics of Federal Sentencing on Cocaine"

From 1999 by Kyle O'Dowd, "The Need to Re-Assess Quantity-Based Drug Sentences"

From 2001 by Paula Kautt, "Differential Usage of Guideline Standards by Defendant Race and Gender in Federal Drug Sentences: Fact or Fiction?"

From 2003 by Alfred Blumstein, "The Notorious 100:1 Crack: Powder Disparity--The Data Tell Us that It Is Time to Restore the Balance"

From 2005 by Ryan S. King and Marc Mauer, "Sentencing with Discretion: Crack Cocaine Sentencing After Booker"

From 2007 by Steven L. Chanenson and Douglas A. Berman, "Federal Cocaine Sentencing in Transition"

From 2007 by Mark Osler, "More than Numbers: A Proposal For Rational Drug Sentences"

I will stop with these links to these 15 FSR articles because I am already overwhelmed and there were dozens more articles I could have highlighted just from the period before recentfederal  crack sentencing reforms. Notably, in 2007, the US Sentencing Commission finally did a first round of (modest) crack guideline reductions, then in 2010 we got the Fair Sentencing Act and it echoed through another round of guideline reductions.  And yet, as witnesses are noting in today's Senate hearing, we still have a disparate and unjustified disparity in our cocaine sentencing laws.  Moreover, as many of the articles above highlight, our enduring commitment to a quantity-based federal drug sentencing structure is a deep problem at the root of our so many of our federal sentencing woes.

June 22, 2021 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Strong extended coverage of modern drug war dynamics from NPR

As noted in this prior post, a number of media outlets ran a number of solid articles about the purported 50th anniversary of the start of the modern "war on drugs."  Valuably, NPR has gone deeper into this multifaceted topic through an extended series of effective pieces.  I have already flagged a few of these segments in prior posts, but I thought it useful to round-up and recommend all that I have now seen here:

June 22, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, June 21, 2021

US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine"

On the morning of Tuesday, June 22, 2021, the US Senate Judiciary Committee has a hearing set for 10am titled "Examining Federal Sentencing for Crack and Powder Cocaine." The hearing should be available to watch at this link, where this list of witnesses are set out:

Ms. Regina LaBelle, Acting Director, Office of National Drug Control Policy

The Honorable Asa Hutchinson, Governor, State of Arkansas

Mr. Matthew Charles, Justice Reform Fellow, FAMM

The Honorable Russell Coleman, Member, Frost Brown Todd

Mr. Antonio Garcia, Executive Director, South Texas High Intensity Drug Trafficking Area

Mr. Steven Wasserman, Vice President for Policy, National Association of Assistant U.S. Attorneys

Notably, the Washington Post here reports on what Ms. Regina LaBelle will be saying in her testimony as well as some of the political context around this hearing.  Here is part of the story:

The Biden administration plans to endorse legislation that would end the disparity in sentences between crack and powder cocaine offenses that President Biden helped create decades ago, according to people with knowledge of the situation — a step that highlights how Biden’s attitudes on drug laws have shifted over his long tenure in elected office.

At a Senate Judiciary Committee hearing Tuesday, Regina LaBelle, the acting director of the White House Office of National Drug Control Policy, plans to express the administration's support for the Eliminating a Quantifiably Unjust Application of the Law Act, or Equal Act. The legislation, which sponsored by Senate Majority Whip Richard J. Durbin (D-Ill.) and Sens. Cory Booker (D-N.J.) and Rob Portman (R-Ohio), would eliminate the sentencing disparity and give people who were convicted or sentenced for a federal cocaine offense a resentencing.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color,” LaBelle says in prepared written testimony obtained by The Washington Post in advance of the hearing. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end. Therefore, the administration urges the swift passage of the ‘Eliminating a Quantifiably Unjust Application of the Law Act.’ ”...

Outside coalitions backing Durbin and Booker’s bill have focused particularly on shoring up conservative support as part of their larger criminal justice overhaul agenda. To that end, one of the witnesses testifying in favor of the bill Tuesday is Gov. Asa Hutchinson of Arkansas, a Republican who led the Drug Enforcement Administration under President George W. Bush.

“Although Congress has taken steps to reduce the disparity and provide some retroactive relief, any sentencing disparity between two substances that are chemically the same weakens the foundation of our system of justice,” Hutchinson says in his prepared remarks, also obtained by The Post.  “Congress now has the opportunity to build on the bipartisan successes of the Fair Sentencing Act and the First Step Act by eliminating the sentencing disparity between crack cocaine and powder cocaine once and for all.  The strength of our justice system is dependent on the perception of fundamental fairness.”

Russell Coleman, a former counsel to now-Senate Minority Leader Mitch McConnell (R-Ky.) and former U. S. attorney for the Western District of Kentucky, will also promote the legislation at the hearing Tuesday morning.

A few prior related posts:

June 21, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, June 18, 2021

Spotlighting many challenges "winning the peace" after drug decriminalization reform in Oregon

As we mark 50 years waging the drug war in the United States, legal reforms and polls make clear that Americans are eager to embrace public health rather than punitive responses to drug activity.  But a growing political will to end the "war on drugs" does not instantly create a practical way forward.  Growing interest in ending the drug war makes it critical for policy markers and advocates to focus on "winning the peace" as we move beyond criminalization models.  But new NPR article, headlined "Oregon's Pioneering Drug Decriminalization Experiment Is Now Facing The Hard Test," highlights the many challenges lie ahead.  I recommend the piece in the full, and here are excerpts:

Oregonians overwhelmingly passed Measure 110 that makes possession of small amounts of cocaine, heroin, LSD and methamphetamine, among other drugs, punishable by a civil citation — akin to a parking ticket — and a $100 fine. That fee can get waived if you get a health screening from a recovery hotline.

The measure, a major victory for advocates pushing for systemic change in U.S. drug policy, expands funding and access to addiction treatment services using tax revenue from the state's pot industry as well as from expected savings from a reduction in arrests and incarceration....

But five months since decriminalization went into effect, the voter-mandated experiment is running into the hard realities of implementation. Realizing the measure's promise has sharply divided the recovery community, alienated some in law enforcement and left big questions about whether the Legislature will fully fund the measure's promised expansion of care.

Even many recovery leaders here who support ending the criminalization of addiction are deeply concerned the state basically jumped off the decriminalization cliff toward a fractured, dysfunctional and underfunded treatment system that's not at all ready to handle an influx of more people seeking treatment. Advocates for decriminalization "don't understand the health care side, and they don't understand recovery," says Mike Marshall, co-founder and director of the group Oregon Recovers. "Our big problem is our health care system doesn't want it, is not prepared for it, doesn't have the resources for it and honestly doesn't have the leadership to begin to incorporate that [expanded treatment]," says Marshall, who is in long-term recovery himself....

Oregon supporters of decriminalization point to Portugal as a reform model. In 2001, Portugal dramatically changed its approach and decriminalized all drugs. The nation began treating addiction as a public health crisis. There, anyone caught with less than a 10-day supply of any drug gets mandatory medical treatment. But Marshall and others point out that Portugal took more than two years to transition carefully to a new system and replace judges, jails and lawyers with doctors, social workers and addiction specialists. "So we put the cart before the horse," he says. In fact, Marshall and others worry the treatment and harm reduction horse isn't even on its feet in Oregon, which is leaving too many stuck in a dangerous pre-treatment limbo and at potential risk of overdosing. "There were no resources and no mechanisms in [Measure] 110 to actually prepare the health care system to receive those folks," Marshall says.

"Most places that have successfully done decriminalization have already worked on a robust and comprehensive treatment system," says Dr. Reginald Richardson, director of the state Alcohol and Drug Policy Commission. "Unfortunately, here in Oregon, we don't have that. What we have is decriminalization, which is a step in the right direction."

There's also shockingly little state data to determine what programs work best or to track treatment outcomes and share best practices. There's also no agreed upon set of metrics or benchmarks to judge treatment efficacy, both in Oregon and nationally.

Prior recent related post:

June 18, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, June 17, 2021

Drug war ... huh ... after 50 years, what is it good for?

War-HUH-Good-god-y-alll-What-is-it-good-for-AbsoluIn July 1969, Prez Richard Nixon delivered a special message to Congress warning about the "serious national threat" of drugs, and he thereafter prodded Congress to pass in 1970 the federal Controlled Substance Act.  But on this day in 1971, Prez Nixon delivered an address in which he declared drug abuse "public enemy No. 1" and stated that "to fight and defeat this enemy, it is necessary to wage a new all-out offensive." Consequently, many mark this day back in 1971 as the start of the "War on Drugs," which it turn means that today marks 50 years, a full half century, of the modern drug wars.

I consider it important to not lose sight of the fact that the US has had a very long history with criminal approaches to intoxicating substances. As this History.com page details, some states passed some drug bans in the 1800 and Congress in the early 1900s enacted the Smoking Opium Exclusion Act and the Harrison Act that functionally banned certain drugs in various ways. And, of course, alcohol prohibitions gained steam in the states in these eras and culminated in the ratification of the 18th Amendment, the only provision added to our Constitution (now repealed) expressly intended to reduce rather than expand the individual liberties of Americans. And a host of punitive and repressive (and racially motivated) drug laws were enacted in the US at the federal, state and local levels throughout the entire 20th Century.

But even though we have been waging so many drugs wars in the US for so many decades, I am still pleased to see others use today's Nixonian anniversary as an opportunity to reflect on what the last half-century of drug policy has meant and done in the United States. Here is an abridged list of some new commentary and news pieces on this always important beat:

From Al Jazeera, "As the drug war turns 50, the US is still public enemy number one"

From Filter, "Poll Shows Huge Public Opposition to 'War on Drugs,' After 50 Years"

From Marijuana Moment, "Most American Voters Support Decriminalizing All Drugs, Another New Poll Finds"

From NPR, "After 50 Years Of The War On Drugs, 'What Good Is It Doing For Us?'"

From Project Syndicate, "A Half-Century of Endless Drug War"

From the Washington Post, "Lost cause: 50 years of the war on drugs in Latin America"

From the Washington Post, "The War on Drugs turns 50 today. It’s time to make peace."

UPDATE: Here are a few more recent press pieces in this genre:

From CNBC, "America has spent over a trillion dollars fighting the war on drugs. 50 years later, drug use in the U.S. is climbing again."

From The Hill, "Fifty failed years later — it's time to end and dismantle the war on drugs"

From Marijuana Moment, "On 50th Anniversary Of Nixon’s Drug War Declaration, Congressional Lawmakers Demand Reform"

June 17, 2021 in Drug Offense Sentencing | Permalink | Comments (1)

Wednesday, June 16, 2021

"Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform"

The title of this post is the title of the scheduled congressional hearing called by the Subcommittee on Crime, Terrorism, and Homeland Security of the U.S. House Committee of the Judiciary. The hearing is to take place on Thursday, June 17, 2021 at 10am and can be streamed here. The witness list, available here, should make this a must-see event:

Rachel E. Barkow, Vice Dean and Charles Seligson Professor of Law, Faculty Director, Center on the Administration of Criminal Law, NYU School of Law

William R. Underwood, Senior Fellow, The Sentencing Project

Kyana Givens, Assistant Federal Public Defender, Office of the Federal Public Defender for the Eastern District of North Carolina

Kassandra Frederique, Executive Director, Drug Policy Alliance

Marta Nelson, Director, Government Strategy, Advocacy and Partnerships Department, Vera Institute of Justice

Jillian E. Snider, Director, Criminal Justice & Civil Liberties, R Street Institute

John Malcolm, Vice President, Institute for Constitutional Government, Director, Meese Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

June 16, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Monday, June 14, 2021

SCOTUS rules in Terry that lowest-level crack offenders cannot secure resentencing based on FIRST STEP Act retroactivity of Fair Sentencing Act

Continuing to make quick work of its criminal docket, the Supreme Court's second criminal ruling today comes in Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021) (available here), and it serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act. Here is how Justice Thomas's opinion for the Court in Terry gets started:

In 1986, Congress established mandatory-minimum penalties for cocaine offenses.  If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence.  Congress set the quantity thresholds far lower for crack offenses than for powder offenses.  But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold.  The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence.  The question here is whether crack offenders who did not trigger a mandatory minimum qualify.  They do not.

Justice Sotomayor has an extended concurring opinion in Terry (it is a bit longer than the majority opinion).  She explains at the start of this opinion that she writes separately "to clarify the consequences of today’s decision.  While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind."

I will likely have a lot more to say about this Terry ruling and its potential echoes once I get a chance to read it more closely.

June 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Friday, June 11, 2021

Split Indiana Supreme Court finally rules that forfeiture of Tyson Timbs' Land Rover driven to small drug deal was constitutionally excessive

Well over two years ago, as blogged here, the Supreme Court ruled unanimously in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the that Excessive Fines Clause of Eighth Amendment applies to the states and then said little else about how that limit on punishment was to be applied. Upon remand, as blogged here, the Indiana Supreme Court some months later issued a lengthy opinion explaining its approach to the Clause while remanding case to the state trial court to apply this approach. And yesterday, the case returned to the Indiana Supreme Court as Indiana v. Timbs, No. 20S-MI-289 (Ind. June 10, 2021) (available here), and resulted in a split opinion in favor of Tyson Timbs. Here is how the majority opinion starts:

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover.  And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again.  During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines.  Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

But, until now, the proportionality inquiry remained unresolved — that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse?  The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019).  Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

Justice Slaughter concurs in the judgment with lengthy separate opinion that includes a notable baseball analogy while fretting that the "law we interpret for the public we serve demands more than our subjective 'totality' test can sustain."  And Justice Massa dissents with separate opinion that starts this way:

The Court offers a compelling case for letting the beleaguered Tyson Timbs keep his Land Rover after all these years.  And the opinion, much to its credit, goes the extra mile in its concluding paragraphs to note and predict that Timbs will be the rare heroin dealer able to show gross disproportionality when his car is forfeited.  Still, I respectfully dissent.

The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation.  But I part ways with the Court’s holding that it was grossly so.  Such a conclusion can only be sustained by finding the severity of the underlying felony to be “minimal,” as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity.  No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street.

June 11, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, June 09, 2021

GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses"

In this new Fox News commentary, Arkansas Gov Asa Hutchinson makes a notable pitch for the EQUAL Act (discussed here).  The piece is headlined "It's time to fix an old wrong and end the disparity between crack and cocaine offenses," and I recommend it in full.  Here are excerpts:

In America, the principles of fairness and equal treatment are fundamental to the rule of law.  When we fall short of these principles, we lose confidence in our justice system and weaken the foundation of our country.  Since 1986, there has been a substantial difference in prison sentences for crack and powdered cocaine offenses, a disparity that has not only encouraged a misapplication of limited law enforcement resources, but has also been the source of unequal punishment for basically identical crimes....

During my time in Congress in the 1990s, and as the head of the Drug Enforcement Administration (DEA) from 2001-2003, I saw first-hand the impact of this disparity, and found it was failing on three fronts.  First, it rarely led to the prosecution of major drug traffickers and sellers.  Instead, it led to increased prosecutions of small-time dealers and peripheral supporters, almost all of whom were replaced immediately.

Second, it became clear that the disparity was built on a misunderstanding of crack cocaine’s chemical properties and effects of the body.  Crack and powdered cocaine were chemically the same, and the violence that was linked to crack cocaine was not related to the properties of the drug.  Instead, it was the general product of the drug trade and the historically violent trends in areas where crack is predominantly used and sold.

Third, it undermined community confidence in the fairness of the criminal justice system. I talked with drug task force officers and front-line agents at the DEA who said this sense of injustice had a real impact in the fight against illegal drugs; it made it more difficult for agents to build trust and work with informants in the areas most impacted by the crack epidemic.  The disparity in sentencing led to more harm than help in our federal anti-crime efforts.

The bipartisan Fair Sentencing Act, sponsored by Sens. Dick Durbin, D-Ill., and Jeff Sessions, R-Ala., dramatically reduced the disparity, from 100:1 to 18:1.  In 2018, the First Step Act, signed into law by President Donald Trump, made that reduced disparity retroactive.

Those were important steps, but the new sentencing laws continue to cause disproportionate harm and decreased trust in communities of color.  For example, in 2019, Black people accounted for 81% of all federal crack cocaine convictions. Those convictions led to prison terms 18 times longer than they would have been for equivalent amounts of chemically identical powdered cocaine.

It is time for Congress to finish what it started, and finally and fully end the disparity between crack and cocaine offenses.  The bipartisan Equal Act would bring federal sentencing law in line with most states that have eliminated, reduced or never instituted, these unjust disparities. That includes my home state of Arkansas, where possession of crack and powdered cocaine are treated the same under state law....

The strength of our justice system is totally dependent on the perception of fairness and the concept that punishments should fit the crimes.  The clear and pernicious injustice of crack and powdered cocaine sentencing disparities harms our communities, limits law enforcement in their fight against illegal drugs, and weakens the foundation of our entire system of justice.

Congress has the opportunity to fully and finally eliminate this injustice by passing the Equal Act.  To get it done, lawmakers of all different backgrounds will need to put partisanship aside and work in the best interests of the American people.  I can’t think of a worthier cause than preserving our founding principle — that all Americans are treated equally under the law.

I am fully supportive of efforts to equalize federal crack and powder sentencing rules which are now based largely around the quantity of drugs involved in the offense.  But, for truly effective reform, I believe we need to not only move entirely away from any quantity-based approaches to drug offense sentencing, but also start moving away from punitive criminal justice responses to drug activities.

A few prior related posts:

June 9, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, June 02, 2021

Fascinating split Third Circuit ruling on federal drug distribution prohibition (and death resulting 20-year mandatory minimum)

A helpful colleague made sure I did not miss yesterday's notable new ruling from a Third Circuit panel in US v. Semler, No. 19-2319 (3d Cir. Jun. 1, 2021) (available here). This split (non-precedential?) decision address the persistently problematic issue of when and how social sharing of drugs constitutes distribution and all of the potentially severe consequences that can follow.  Here is how the majority opinion authored by Judge Roth gets started: 

Emma Semler is an addict who bought and injected heroin with a fellow user, then failed to intervene as that user overdosed and died.  She now appeals her conviction and sentence under the Controlled Substances Act for distribution of heroin resulting in death, a charge that carries a mandatory minimum sentence of twenty years’ imprisonment.

We hold that the definition of “distribute” under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.  Because a reasonable jury could find that Semler and the decedent jointly acquired possession of the heroin in question for their personal use, we will vacate Semler’s conviction and remand this case for a new trial so that the jury can be instructed on the correct legal standard.

The dissent authored by Judge Porter starts this way:

The Controlled Substances Act prohibits the distribution of certain drugs.  In that statute, Congress carefully defined the meaning of “distribute.”  Dissatisfied with the breadth of Congress’s handiwork, the majority vacates Emma Semler’s judgment of conviction.  It holds that Semler did not “actually transfer” heroin when she handed it to Jennifer Werstler.  Because that “is flatly contrary to standard English usage” and contradicts our Court’s precedent, I respectfully dissent.  Kansas v. Garcia, 140 S. Ct. 791, 802 (2020).

A few prior posts on drug-causing-death prosecutions and punishments:

June 2, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, May 27, 2021

In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision

In recent posts here and here, I have spotlighted a significant recent Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But a helpful reader flagged in a comment to one of these posts that an Eleventh Circuit panel reach an opposite interpretation of this statutory language just days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here).  Here is a key passage from the start and from the central analysis in Garcon

Julian Garcon pleaded guilty to attempted possession of 500 grams or more of cocaine with intent to distribute in violation of the Controlled Substances Act and faced a five-year statutory minimum sentence.  21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(ii); 846.  At sentencing, Garcon sought safety valve relief as provided in the First Step Act, 18 U.S.C. § 3553(f)(1).  The district court interpreted the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.  The district court then found that Garcon was eligible for relief because he had only a prior three point offense, as described in § 3553(f)(1)(B).  The government appealed, arguing that § 3553(f)(1) is written in the disjunctive and, thus, Garcon is ineligible for safety valve relief because he met one of the three disqualifying criteria — here, he has a prior three-point conviction.  After careful review and with the benefit of oral argument, we find that, based on the text and structure of § 3553(f)(1), the “and” is disjunctive.  Accordingly, we vacate Garcon’s sentence and remand for resentencing....

The contextual indication that the “and” in § 3553(f)(1) is disjunctive is that if the “and” is read conjunctively so that a defendant must have all three requirements before he is disqualified from the safety valve, then subsection (A) would be superfluous. If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points.  Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.

In short, last week produced a crisp circuit split on the proper interpretation of a key provision of the FIRST STEP Act on a matter that impacts many hundreds of federal drug cases every month.  Data from the US Sentencing Commission shows there are typically more than 1500 drug cases sentenced in federal court each and every month, with over 250 each month in the Ninth Circuit and over 100 each month in the Eleventh Circuit.  Not all these cases will be impacted by this statutory dispute over the reach of the new safety valve, but many can be.

It is surely only a matter of time before other circuit weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.  Along the way, it will be interesting to see if future rulings find this existing circuit split to be evidence of ambiguity in the statutory text (which, in turn, should lead to rulings in favor of the defendant based on the rule of lenity).  Notably, the Eleventh Circuit panel in Garcon states in support of its narrow interpretation that the "text and structure of § 3553(f)(1) provide a clear meaning."  Garcon, No. 19-14650, slip op. at 9.  But the Ninth Circuit in Lopez states in support of its broader interpretation that it must apply "Congress’s clear and unambiguous text."  Lopez, No. 19-50305, slip op. at 19.  To me, the only thing that seems actually "clear" about this statute's text is that SCOTUS is going to have to resolve how it should be applied.

Prior related post:

May 27, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, May 26, 2021

Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional

I flagged in this post last week that the US Sentencing Commission had just released a host of notable new materials with lots of interesting data via the USSC's website.  Upon reflection and review, I was especially struck by this new data run detailing retroactive application of "Amendment 782 -- The 2014 Drug Guidelines Amendment, often referred to as 'Drugs Minus Two'."  These data reminded me of how impactful a functional and forward-thinking US Sentencing Commission can be on its own ... and why I hope Prez Biden will soon put forward nominations that would lead the USSC to become functional and forward-looking once again.

A bit of background, drawn from this report: "On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that ... reduced by two levels the offense levels assigned to [drug] quantities....  On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782."  In other words, the USSC in 2014 reduced the basic guideline offense level by two for all drug offenses and made this change retroactively applicable to all federal drug defendants still imprisoned for offenses before 2014.  Because drug offense are a huge part of the federal criminal docket and an even larger part of the federal prison population, this relatively small guideline change has had a huge prison time impact.

Specifically, as this retroactive new data report details, a total of 31,908 persons in federal prison were granted sentence reductions that averaged 26 months.  In other words, the retroactive application of the "drugs -2" guideline amendment resulted in just about 70,000(!) years of retroactive reduced imprisonment.  Further, with well over 100,000 federal drug cases sentenced over the last six years, the "prospective" impact of the  drugs -2 guideline amendment has surely been at least another 200,000 years of reduced imprisonment for federal drug offenders (and still counting). 

Critically, the drugs -2 amendment was not a direct reaction to any congressional legislation, it was a (bipartisan) decision made by a (bipartisan) expert commission shaped by evidence and sound policy analysis in all respects.  In other words, this was a consequential (decarceal) reform moved forward in precisely the good-government process that Judge Marvin Frankel envisioned when he astutely suggested the creation of a Commission on Sentencing for the federal criminal justice system. 

Sadly, the US Sentencing Commission is now essentially non-functional, at least for guideline amendments and any big initiatives, for going on three years because of the lack of commissioners.  As discussed in a number of prior posts linked below, I hope Prez Biden will get the USSC up and running again.  In the meantime, I will keep doing posts to note the wisdom and reform potential we risk losing until the USSC is functional and forward-looking once again.

 A few prior recent related posts:

May 26, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, May 23, 2021

Another accounting of Ninth Circuit's significant FIRST STEP safety-valve expansion Lopez ruling

6a00d83451574769e20224df387165200bIn this post yesterday, I flagged the significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), concerning the proper interpretation of the FIRST-STEP-amended statutory safety valve.  Professor Eric Fish alerted me to this important new ruling, and he also kindly wrote up this thoughtful account of it:

The Ninth Circuit just issued a major opinion, United States v. Lopez, that makes it significantly easier to avoid mandatory minimums in federal drug cases.  All three judges signed on to the result, and on balance it was a relatively conservative panel.  The opinion is a highly technical exercise in textualism that turns on the meaning of the word “and.” One could see its reasoning succeeding in the current Supreme Court.

To understand the opinion, it is first necessary to understand the “safety valve” exception.  This exception lets defendants avoid mandatory minimum sentences in federal drug cases, but only if they satisfy five criteria: (1) the crime cannot result in death or serious bodily injury, (2) the defendant cannot use violence or possess a dangerous weapon, (3) the defendant cannot be an “organizer, leader, or manager,” (4) the defendant must provide all information they have about the crime to the government, and (5) a rule excluding defendants based on their criminal history.

This last exclusion, based on criminal history, was at issue in Lopez.  Up until 2018, anybody with more than one “criminal history point” under the Sentencing Guidelines was excluded from safety valve.  This meant that anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.  The First Step Act expanded this rule to the following (codified at 18 U.S.C. 3553(f)(1)):

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

After the First Step Act was enacted, judges and attorneys assumed that someone whose criminal history met the criteria in A, B, or C could not get safety valve.  So someone with more than 4 points, a 3-point conviction (meaning any conviction with a sentence over 13 months), or a 2-point “violent offense” couldn’t avoid the mandatory minimum.  But is that what the provision means?  Apparently not, says the panel!  Read it again – the three items are connected by a conjunctive “and,” not a disjunctive “or.”  And the plainest reading of three items connected by “and” is that the list includes all three.  So, reasoned the panel, to be excluded from safety valve you must have every item on the list.

The prosecutors’ strongest argument was that if “and” is read to mean “and,” then (A) becomes surplusage. If someone has a 3-point offense and a 2-point violent offense, they necessarily have “more than 4 criminal history points.”  The majority deals with this by observing that “2-point violent offense” could be read to mean “2- or 3-point violent offense,” since any 3-point offense also contains two points.  So someone could have a 3-point violent offense satisfying (B) and (C), but not have 4 or more points for (A).  The concurrence by Ninth Circuit judge Milan Smith Jr. disagrees with that reading of (C), but still concludes that “and” means “and” notwithstanding any surplusage.

Only a small number of defendants meet all three criteria.  The Lopez opinion thus lets many more people avoid mandatory minimum sentences.  With the available data it is difficult to estimate exactly how many more people would qualify, but the number is significant.  

Prior related post:

May 23, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Saturday, May 22, 2021

Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences

A helpful reader made sure I did not miss a significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here).  Here is how the opinion gets started:

Title 18 U.S.C. § 3553(f), commonly called the “safety valve,” allows a district court to sentence a criminal defendant below the mandatory-minimum sentence for certain drug offenses if the defendant meets the criteria in § 3553(f)(1) through (f)(5).  In 2018, Congress amended one of the safety valve’s provisions: § 3553(f)(1).  See First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221. Section 3553(f)(1) focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. See generally 18 U.S.C. § 3553(f)(1). As amended, § 3553(f)(1) requires a defendant to prove that he or she “does not have” the following: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.” Id. § 3553(f)(1)(A)–(C) (emphasis added).

As a matter of first impression, we must interpret the “and” joining subsections (A), (B), and (C) under § 3553(f)(1). If § 3553(f)(1)’s “and” carries its ordinary conjunctive meaning, a criminal defendant must have (A) more than four criminal-history points, (B) a prior threepoint offense, and (C) a prior two-point violent offense, cumulatively, before he or she is barred from safety-valve relief under § 3553(f)(1).  But if we rewrite § 3553(f)(1)’s “and” into an “or,” as the government urges, a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief under § 3553(f)(1). Applying the tools of statutory construction, we hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. Put another way, we hold that “and” means “and.”

I believe that this statutory construction means that even more federal drug defendants will be able to benefit from the statutory safety valve thanks to the FIRST STEP Act than some may have thought. But, as the main opinion explains as it concludes, it is the statutory text that ultimately matters:

We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines.  See Mejia-Pimental, 477 F.3d at 1104.  As a result, § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated.

But sometimes Congress uses words that reach further than some members of Congress may have expected.  See Bostock, 140 S. Ct. at 1749 (noting that Congress’s plain language sometimes reaches “beyond the principal evil [that] legislators may have intended or expected to address,” but courts remain obligated to give Congress’s language its plain meaning) (citation and quotation marks omitted).  We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expected.  See id. (“[I]t is ultimately the provisions of [Congress’s] legislative commands rather than the principal concerns of our legislators by which we are governed.”) (emphasis added) (citation and quotation marks omitted).

Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s  structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive.  If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly.  We do not.

May 22, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Tuesday, May 18, 2021

Lots of criminal justice discussion of later at Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in a little while, and I am especially eager to flag again this earlier post requesting information from any and all folks teaching (or interested in teaching) a law course on drugs generally or cannabis in particular (sought via a short survey at go.osu.edu/teaching-drugs-survey).  In addition, below are some more recent posts at the intersection of criminal justice reform and marijuana reform from MLP&R

May 18, 2021 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Sunday, May 16, 2021

"Drug Supervision"

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

Criticism of harsh drug sentencing laws in the United States typically focuses on long prison sentences.  But our criminal justice system also inflicts a significant volume of drug-related punishment through community supervision — probation, parole, and supervised release.  Over one million people are under supervision due to a drug conviction, and drug violations are among the most common reasons for revocations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I show that drug sentencing is central to the federal system of supervised release.  While Congress created supervised release as a program of transitional support for former prisoners, the system has instead become a drug- control network focused on public safety.  The mandatory revocation provision at 18 U.S.C. § 3583(g) in particular was designed to immediately imprison people with drug addiction at the first sign of drug use.  This targeting of drug activity for enhanced punishment is so extreme that it violates the jury right under the Supreme Court’s 2019 decision in United States v. Haymond.

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

Friday, May 14, 2021

Split Mississippi appellate court upholds, against Eighth Amendment challenge, an LWOP habitual-offender sentence for marijuana possession

As report in this AP piece, the "Mississippi Court of Appeals on Tuesday upheld a life sentence for a man convicted of a marijuana possession charge because he had previous convictions and those made him a habitual offender." Here is bit more about the ruling from the AP:

Allen Russell, 38, was sentenced to life in Forrest County in 2019 after a jury found him guilty of possession of more than 30 grams (1.05 ounces) of marijuana.

In Mississippi, a person can be sentenced to life without parole after serving at least one year in prison on two separate felonies, one of which must be a violent offense. Russell was convicted on two home burglaries in 2004 and for unlawful possession of a firearm in 2015. By law, burglary is a violent offense in Mississippi, whether or not there is proof that violence occurred. That was not the case when Russell was sentenced for home burglary in 2004. Then, burglary was only considered a violent crime if there was proof of violence. The law changed in 2014.

In his appeal, Russell argued that a life sentence constitutes “cruel and unusual punishment and is grossly disproportionate” to his crime of marijuana possession. The Court of Appeals disagreed in its majority opinion, stating that Russell’s life sentence is in accordance with Mississippi law. Russell is not being sentenced solely for having marijuana, but for being a habitual offender, the judges said.

But several dissenting judges argued that the court can — and should — make exceptions. “The purpose of the criminal justice system is to punish those who break the law, deter them from making similar mistakes, and give them the opportunity to become productive members of society,” Judge Latrice Westbrooks wrote. “The fact that judges are not routinely given the ability to exercise discretion in sentencing all habitual offenders is completely at odds with this goal.”

The full opinions in Russell v. Mississippi, NO. 2019-KA-01670-COA (Miss. Ct. App. May 11, 2021), are available here.  Here is the start and another part of the majority opinion:

A Forrest County jury found Allen Russell guilty of possession of marijuana in an amount greater than 30 grams but less than 250 grams. The Forrest County Circuit Court sentenced Russell as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. On appeal from the circuit court’s judgment, Russell argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to his felony conviction. Finding no error, we affirm....

Here, the State’s evidence established that Russell had two prior separate felony convictions for burglary of a dwelling, for which he was sentenced to and served over one year in MDOC’s custody on each conviction.  The State also presented evidence that Russell was later convicted of possession of a firearm by a felon and sentenced to ten years with eight years suspended and two years to serve, followed by five years of post-release supervision.  Based on such evidence, the circuit court justifiably found Russell to be a violent habitual offender under section 99-19-83 and sentenced him to life imprisonment in MDOC’s custody without eligibility for probation or parole.  Because Russell has failed to prove the threshold requirement of gross disproportionality, and because his habitual-offender sentence fell within the statutory guidelines, we conclude that his sentence constituted “a constitutionally permissible punishment for his most recent crime . . . .” Miller, 225 So. 3d at 16 (¶17). We therefore find this issue lacks merit.

One of the dissents begins this way:

In Solem v. Helm, 466 U.S. 277 (1983), the United States Supreme Court held that a life without parole sentence for a recidivist criminal convicted of a relatively low-level felony violated the Eighth Amendment. In terms of the gravity of his present offense and the extent and seriousness of his criminal history, I cannot draw any material distinction between Allen Russell and the defendant in Solem. Thus, I conclude that we are bound under Solem to vacate Russell’s life without parole sentence. Accordingly, I respectfully dissent

Because I was stunned to see an LWOP sentence for marijuana possession and due to the description in the opinion concerning how the defendant was found in possession of marijuana, I did a little bit of extra research about Allen Russell.  Though not mentioned in this appellate ruling, this local article from late 2017 reports that Russell was being arrested on murder charges at the time he was found to be in possession of marijuana.  Though I could find no report of Russell being convicted of (or even tried on) a homicide charge, I am inclined to suspect that this background may have played at least some role in how Russell was initially charged by prosecutors and ultimately sentenced for his marijuana possession.

I presume that this case will now be appealed to the Mississippi Supreme Court and perhaps the US Supreme Court if the Mississippi courts continuing to uphold this extreme sentence. I would think that, if the Eighth Amendment is to place any limit at all the length of prison sentences imposed on adult offenders, an LWOP sentence for possessing a small amount of marijuana ought to be subject to very serious scrutiny.  And yet, SCOTUS has a history of upholding extreme recidivism-based sentences (Ewing v. California, 538 U.S. 11 (2003), being the most recent example), and so the past and present work of the Supreme Court in this arena should not provide much basis for Russell to be especially optimistic regarding further appeals.

May 14, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, May 11, 2021

Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable

I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.

The dissenting opinion concluded this way:

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.

This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:

A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.

I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department.  And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but  the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.

Prior related post:

May 11, 2021 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Monday, May 10, 2021

Two sharp discussions of the inefficacy and inequities of the war on drugs

Today I saw two different types of commentary coming from two different authors saying in different ways the same fundamental resolute point: the war on drugs has been a failure full of injustices and we must dramatically change course.  Both pieces should be read in full, and I hope these snippets prompt clicks through:

First, be sure to check out Nora Volkow, director of the National Institute on Drug Abuse (NIDA), Health Affairs blog entry titled "Addiction Should Be Treated, Not Penalized." (Hat tip: Marijuana Moment).  Here are excerpts (links from original):

[Health] disparities are particularly stark in the field of substance use and substance use disorders, where entrenched punitive approaches have exacerbated stigma and made it hard to implement appropriate medical care. Abundant data show that Black people and other communities of color have been disproportionately harmed by decades of addressing drug use as a crime rather than as a matter of public health....

Although statistics vary by drug type, overall, White and Black people do not significantly differ in their use of drugs, yet the legal consequences they face are often very different. Even though they use cannabis at similar rates, for instance, Black people were nearly four times more likely to be arrested for cannabis possession than White people in 2018.  Of the 277,000 people imprisoned nationwide for a drug offense in 2013, more than half (56 percent) were African American or Latino even though together those groups accounted for about a quarter of the US population.

During the early years of the opioid crisis in this century, arrests for heroin greatly exceeded those for diverted prescription opioids, even though the latter — which were predominantly used by White people — were more widely misused.  It is well known that during the crack cocaine epidemic in the 1980s, much harsher penalties were imposed for crack (or freebase) cocaine, which had high rates of use in urban communities of color, than for powder cocaine, even though they are two forms of the same drug.  These are just a few examples of the kinds of racial discrimination that have long been associated with drug laws and their policing....

Drug use continues to be penalized, despite the fact that punishment does not ameliorate substance use disorders or related problems.  One analysis by the Pew Charitable Trusts found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.  

Imprisonment, whether for drug or other offenses, actually leads to much higher risk of drug overdose upon release. More than half of people in prison have an untreated substance use disorder, and illicit drug and medication use typically greatly increases following a period of imprisonment. 

Second, be sure to also read Nkechi Taifa, convener of the Justice Roundtable, commenting at the Brennan Center under the title "Race, Mass Incarceration, and the Disastrous War on Drugs."  Here is how the (relatively more optimistic) piece concludes (again links in original):

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing.  I sensed the beginning of this with the 2008 Second Chance Reentry bill and 2010 Fair Sentencing Act, which reduced the disparity between crack and powder cocaine.  I smiled when the 2012 Supreme Court ruling in Miller v. Alabama came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment's prohibition against cruel and unusual punishment.  In 2013, I was delighted when Attorney General Eric Holder announced his Smart on Crime policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players.  The following year, I applauded President Obama’s executive clemency initiative to provide relief for many people serving inordinately lengthy mandatory-minimum sentences.  Despite its failure to become law, I celebrated the Sentencing Reform and Corrections Act of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018 First Step Act.  All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough.  We have experienced nearly five decades of destructive mass incarceration.  There must be an end to the racist policies and severe sentences the War on Drugs brought us.  We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds.  End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders.  Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences.  Make sentences retroactive where laws have changed.  Support categorical clemencies to rectify past injustices.

It is time for bold action.  We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

May 10, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, May 04, 2021

SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity

On Tuesday morning, the Supreme Court heard oral argument in Terry v. United States, and the full oral argument is available here via C-SPAN.  The full argument runs nearly 90 minutes and the quality of the advocacy makes it worth the full listen.  But one can get a much quicker flavor of the tenor of the discussion from just a scan of the headlines of these press accounts of the argument:

From the AP, "Supreme Court skeptical of low-level crack offender’s case"

From Bloomberg Law, "Biden Switch Unlikely to Save Crack Offenders at Supreme Court"

From Law & Crime, "Biden Administration Flip-Flopped Its Position in Case Over Crack Cocaine Sentences. SCOTUS Did Not Seem Pleased."

From Reuters, "U.S. Supreme Court skeptical of expanding crack cocaine reforms"

From USA Today, "Supreme Court skeptical of applying Trump-era criminal justice law retroactively for small drug offenses"

From the Washington Post, "Supreme Court seems skeptical that law helps all convicted of crack cocaine offenses"

All the "skeptical" questions from the Justices certainly leaves me thinking that the Supreme Court will rule that Tarahrick Terry is not entitled to resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  That may not ultimately be such a big loss for Mr. Terry since, as the Acting SG explained to SCOTUS back in March, he is already finishing up his prison sentence through home confinement and that term is to be completed in September.  I am hopeful that the relatively small number of similarly situated defendants who would be adversely impacted by a Terry loss would have some similar silver lining.

Prior related posts:

May 4, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 03, 2021

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

May 3, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, April 21, 2021

Great coverage of the success of "The Mother Teresa of Pot Prisoners"

In years past, I have tended to dislike the uptick in marijuana media coverage around 4/20 because a range of serious issues, and especially serious criminal justice issues, often seemed not to get the serious coverage that they deserved.  But with marijuana reform continuing to pick up momentum, I think the 4/20 media mania is getting a little better.  And I will always be grateful for whatever leads to media coverage of my favorite advocate of criminal justice reform in the marijuana space.  She is the focal point of this lengthy new Input piece with this great full title: "How ‘The Mother Teresa of Pot Prisoners’ saved her brother from dying behind bars: Beth Curtis’ LifeforPot.com may look janky, but it’s been amazingly effective in getting nonviolent marijuana offenders out of prison."  I recommend the piece in full, and here are snippets:

On 4/20, Craig [Cesal] will be on a fishing trip in West Palm Beach with a group of other marijuana offenders who’ve managed to have their sentences reduced. “There’s a cannabis company that’s paying to fly a bunch of us former pot lifers down,” Cesal says. “Of course, Beth is going down, because we all have ties to her.”

The “Beth” he’s referring to is 79-year-old Beth Curtis from Zanesville, Ohio, the founder of LifeforPot.com, an amateurish little site she built in 2009 to raise awareness about people like Craig — or more specifically, people like her brother, John Knock, who was sentenced to two life terms plus 20 years for a first-time nonviolent marijuana-only offense. Beth has spent more than a decade aggressively advocating for federal clemency on Knock’s and others’ behalf, earning her the nickname the Mother Teresa of Pot Prisoners.

Curtis hoped that by giving people like her brother a presence on the internet, her website would help to raise public awareness about an aspect of criminal justice sentencing most people didn’t seem to know about. “When I talked about somebody serving life for marijuana, honestly people didn’t believe it,” she says. “They’d think, ‘There has to be a dead body somewhere.’ Indeed, there do not have to be any dead bodies, or even a gun.”...

When I ask Curtis if she built the site herself, she laughs out loud. “Yes, can’t you tell?” she replies. Clunky as it is, the current version is much improved from the original, which she built using “CafePress or something” and became a running joke among her friends. When an article in the Miami New Times mentioned her “scrappy-looking site,” fellow clemency advocate Dennis Cauchon called her and said “You know, ‘scrappy’ rhymes with something,” she relates. “And that’s indeed true,” she adds.

Crappiness aside, the site’s been effective. Of the 39 people featured on Life for Pot, 24 have been granted clemency or compassionate release — including, most recently, Knock, who was granted clemency by President Trump in January.

“She did it,” Knock, 73, says of his sister. “One little lady, barely five feet tall, and she just kept pushing and pushing and pushing.” For someone as driven as Curtis, failure was not an option: “I couldn’t imagine that I would die while he was still confined behind bars. The thought sickened me.”

April 21, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 20, 2021

Mixed messages on mandatory minimums from executive branch in New Jersey witrh a retroactive kicker

In this post last month, I flagged the debate in New Jersey where the Governor was threatening to veto a bill to repeal mandatory minimums for certain non-violent crimes because it repealed too many mandatory minimum sentences.  Sure enough, that veto happened yesterday, but so too did an interesting related action from the NJ Attorney General.  This Politico piece, headlined "Murphy vetoes mandatory minimum bill as Grewal unilaterally eliminates some sentences," provides these details (with some emphasis added):

Gov. Phil Murphy on Monday vetoed a bill that would do away with mandatory minimum prison terms for non-violent crimes, excising sections that would eliminate the sentences for corruption offenses.  At the same time, Attorney General Gurbir Grewal issued a directive requiring that prosecutors make use of a provision in New Jersey law allowing them to set aside mandatory minimum sentences for drug-related crimes.

“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests,” Murphy wrote in his veto message, which also took a shot at former President Donald Trump.  “I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.”

The two executive actions are the culmination of an eight-month political fight between the Murphy administration and the Democrat-controlled Legislature over what began as benign legislation that followed exactly the recommendations of the New Jersey Criminal Sentencing & Disposition Commission.  The commission, in a November 2019 report, recommended eliminating mandatory sentences for a wide swath of mostly drug and property crimes with the aim of reducing racial disparities among the incarcerated.

Murphy’s conditional veto essentially returns the legislation, NJ S3456 (20R), to its initial form — which did not address corruption offenses — before state Sen. Nicholas Sacco began a successful effort to change it. Grewal’s directive may help allay the concerns of criminal justice advocates who did not want to see mandatory minimum sentences upheld over a political fight, leading some to throw their support behind the legislative effort.  The directive goes further than the legislation would have, applying retroactively to prisoners serving mandatory minimum sentences for drug offenses.  The directive does not apply to mandatory minimum sentences for non-violent property crimes, and it was not immediately clear how many inmates are serving time under those laws.

“It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” Grewal said in a statement.  “It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences.  This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color.  We can wait no longer. It’s time to act.”

New Jersey Together, a coalition of criminal justice reform advocates, said in a statement that “ending mandatory minimum sentences for non-violent drug crimes prospectively and for those currently incarcerated will be a huge step in the right direction.” “Now, the work should begin with the governor and the Legislature to make this permanent and to end mandatory minimum sentencing as a whole,” the group said.

Amol Sinha, executive director of the ACLU-NJ, said in a statement that even though Grewal’s directive takes “significant steps to mitigate the harms of some of the most problematic mandatory minimums,” his group is “disappointed” because “our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans.” Sinha urged the Legislature to concur with Murphy’s veto....

Grewal’s directive allows prosecutors to seek periods of parole ineligibility “when warranted to protect public safety based on the specific facts of the case.”  Advocates have long sought to repeal mandatory minimum sentences, especially those that came about as part of the “War on Drugs.”  For instance, New Jersey imposes harsh mandatory sentences for those caught selling drugs within 1,000 feet of a school, a crime far more likely to harshly punish dealers in denser urban areas and who are more likely to be Black and Hispanic.  At the time of a 2016 report by The Sentencing Project, New Jersey incarcerated white people at a rate of 94 per 100,000 compared to 1,140 for Black and 206 for Hispanic people.

A bill that mirrored the recommendations of the New Jersey Criminal Sentencing & Disposition Commission was nearing the final stages of the the legislative process when Sacco (D-Hudson) quietly requested an amendment to eliminate the mandatory minimum sentences for official misconduct.  Sacco later acknowledged to POLITICO that he requested the amendment. Walter Somick, the son of Sacco‘s longtime girlfriend, is facing several corruption-related charges, including official misconduct, over an alleged no-show job at the Department of Public Worker in North Bergen, where Sacco is mayor and runs a powerful political machine....

“I am cognizant of the fact that Attorney General‘s directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute,” Murphy said. “I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.”

Because I generally view all mandatory minimum sentencing provisions for nonviolent offenses to be problematic, I am a bit disappointed by the veto of the legislative reform here.  But because I generally favor retroactive reforms to enable excessive prior prison terms to be addressed, the retroactive relief made possible by the NJ AG is a comforting related development.  The basics of the AG action is discussed in this official press statement and the full 11-page directive can be accessed at this link.

Prior related posts:

April 20, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 12, 2021

DEPC-hosted symposium, "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," now available online

Fentanyl-Analogues-Conference_for-social_v3As detailed in this press release, a coalition of over drug policy, civil rights, criminal justice and public health organizations are urging Congress and the Biden Administration to allow temporary class-wide emergency scheduling of fentanyl-related substances to expire in May 2021.  This letter to members of Congress on this topic highlights why this issue is, in many ways, a sentencing story because "class-wide scheduling of fentanyl analogues ... expands the application of existing severe mandatory minimum sentencing laws enacted by Congress in the 1980s to a newly scheduled class of fentanyl-related compounds":

For example, just a trace amount of a fentanyl analogue in a mixture with a combined weight of 10 grams — 10 paper clips — can translate into a five-year mandatory minimum, with no evidence needed that the seller even knew it contained fentanyl.  In addition, current laws impose a statutory maximum sentence of 20 years for just a trace amount of a fentanyl analogue in a mixture with a combined weight of less than 10 grams."

The advocacy letter also notes the practical realities of existing laws and concludes with a pitch for the Biden Administration to make good of avowed opposition to mandatory minimum sentencing schemes:

Between 2015 and 2019, prosecutions for federal fentanyl offenses increased by nearly 4,000%, and fentanyl-analogue prosecutions increased a stunning 5,000%.  There are significant racial disparities in these prosecutions, with people of color comprising almost 75% of those sentenced in fentanyl cases in 2019.  This holds true for fentanyl analogues, for which 68% of those sentenced were people of color.  In addition, more than half of all federal fentanyl-analogue prosecutions in 2019 involved a street-level seller or other minor role; only 10.3% of these cases involved the most serious functions."...

The expiration of class-wide scheduling is an opportunity for the Biden administration and Congress to make good on a commitment to end mandatory minimums and embrace a public health approach.  The class-wide scheduling discussion allows Congress and this administration the opportunity to choose a new path on drug policy.  The Biden administration has expressed support for ending mandatory minimums. Allowing this policy to expire aligns with Biden’s stated support of ending mandatory minimums and treating drugs as a public health issue

Last month, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law had the honor last month of hosting a multi-panel virtual symposium, titled "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," which explored these issues at great length with a great set of speakers.  Here was how the event was set up:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills.  In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that class-wide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths. Participants will learn about the relationship between class-wide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose.  Participants will be presented with an intersectional discussion of the issue that examines class-wide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

I am pleased to now be able to report that a transcript and captioned recordings of each panel are available now. 

UPDATE: The GAO has now released this new report on this topic under the title "Synthetic Opioids: Considerations for the Class-Wide Scheduling of Fentanyl-Related Substances."

In addition, as detailed at this webpage, The US House of Representatives' Subcommittee on Health of the Committee on Energy and Commerce will hold a legislative hearing on Wednesday, April 14, 2021, at 10:30 a.m. via Cisco WebEx entitled, "An Epidemic within a Pandemic: Understanding Substance Use and Misuse in America."  The written testimony of the scheduled witnesses suggests that class-wide scheduling of fentanyl analogues will be a major topic of the hearing.

ANOTHER UPDATE: The Intercept has this clear and effective article on these topics under the headline "Biden Looks To Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing."  Here are its opening paragraphs:

THE BIDEN ADMINISTRATION is expected to announce support this week for the temporary extension of a Trump-era policy expanding mandatory minimum sentencing to cover a range of fentanyl-related substances.  More than 100 civil rights, public health, and criminal justice advocacy groups sent a letter last week urging Congress and President Joe Biden to oppose any extension of the Trump policy.

The administration can’t extend the policy without congressional action, which it is expected to support during a Wednesday hearing on substance use before the House Energy and Commerce Committee, according to two groups on the letter and several Democratic aides.  The aides note that the administration will likely request additional time to explore the policy’s ramifications and has not yet decided whether it will adopt a full extension.

April 12, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Friday, April 09, 2021

Latest American Journal of Bioethics issue takes hard look at "War on Drugs"

Download (17)I am pleased to have discovered that new issue of the American Journal of Bioethics has a lead article and a host of responsive commentaries on the modern state of debate over the war on drugs.  Here are links to all the great looking content:

Ending the War on Drugs Is an Essential Step Toward Racial Justice by Jeffrey Miron & Erin Partin

Racial Justice Requires Ending the War on Drugs by Brian D. Earp, Jonathan Lewis, Carl L. Hart & with Bioethicists and Allied Professionals for Drug Policy Reform

Ending the War on People with Substance Use Disorders in Health Care by Kelly K. Dineen & Elizabeth Pendo

Legalization of Drugs and Human Flourishing by Marianne Rochette, Esthelle Ewusi Boisvert & Eric Racine

Ending the War on Drugs: Public Attitudes and Incremental Change by Joseph T. F. Roberts

Some Contributions on How to Formulate Drug Policies and Provide Evidence-Based Regulation by S. Rolles, D. J. Nutt & A. K. Schlag

Ending the War on Drugs Need Not, and Should Not, Involve Legalizing Supply by a For-Profit Industry by Jonathan P. Caulkins & Peter Reuter

Racial Justice and Economic Efficiency Both Require Ending the War on Drugs by Pierre-André Chiappori & Kristina Orfali

Ending the War on Drugs Requires Decriminalization. Does It Also Require Legalization? by Travis N. Rieder

Beyond Decriminalization: Ending the War on Drugs Requires Recasting Police Discretion through the Lens of a Public Health Ethic by Brandon del Pozo, Leo Beletsky, Jeremiah Goulka & John Kleinig

Drug Legalization is Not a Masterstroke for Addressing Racial Inequality by Wayne Hall & Adrian Carter

The Importance of Rights to the Argument for the Decriminalization of Drugs by Kyle G. Fritz

The “War on Drugs” Affects Children Too: Racial Inequities in Pediatric Populations by Emily W. Kemper, Emily Davis, Anthony L. Bui, Austin DeChalus, Melissa Martos, Jessica E. McDade, Tracy L. Seimears & Aleksandra E. Olszewski

“It’s a War on People …” by Jarrett Zigon

“Second Chance” Mechanisms as a First Step to Ending the War on Drugs by Colleen M. Berryessa

April 9, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Sunday, April 04, 2021

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Friday, April 02, 2021

ONDCP releases "Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One"

The Executive Office of The President Office Of National Drug Control Policy yesterday released this detailed 11-page document titled "The Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One."  For folks interesting in the potential future of the drug war at the federal level, the document makes for an interesting read.  Here is how it gets started (endnotes omitted):

The overdose and addiction crisis has taken a heartbreaking toll on far too many Americans and their families.  Since 2015, overdose death numbers have risen 35 percent, reaching a historic high of 70,630 deaths in 2019.  This is a greater rate of increase than for any other type of injury death in the United States.  Though illicitly manufactured fentanyl and synthetic opioids other than methadone (SOOTM) have been the primary driver behind the increase, overdose deaths involving cocaine and other psychostimulants, like methamphetamine, have also risen in recent years, particularly in combination with SOOTM.  New data suggest that COVID-19 has exacerbated the epidemic, and increases in overdose mortality6 have underscored systemic inequities in our nation’s approach to criminal justice and prevention, treatment, and recovery.

President Biden has made clear that addressing the overdose and addiction epidemic is an urgent priority for his administration.  In March, the President signed into law the American Rescue Plan, which appropriated nearly $4 billion to enable the Substance Abuse and Mental Health Services Administration and the Health Resources and Services Administration to expand access to vital behavioral health services.  President Biden has also said that people should not be incarcerated for drug use but should be offered treatment instead.  The President has also emphasized the need to eradicate racial, gender, and economic inequities that currently exist in the criminal justice system.

These drug policy priorities — statutorily due to Congress by April 1st of an inaugural year — take a bold approach to reducing overdoses and saving lives.  The priorities provide guideposts to ensure that the federal government promotes evidence-based public health and public safety interventions.  The priorities also emphasize several cross-cutting facets of the epidemic, namely by focusing on ensuring racial equity in drug policy and promoting harm-reduction efforts.  The priorities are:

  • Expanding access to evidence-based treatment;
  • Advancing racial equity issues in our approach to drug policy;
  • Enhancing evidence-based harm reduction efforts;
  • Supporting evidence-based prevention efforts to reduce youth substance use;
  • Reducing the supply of illicit substances;
  • Advancing recovery-ready workplaces and expanding the addiction workforce; and
  • Expanding access to recovery support services.

ONDCP will work closely with other White House components, agencies and Congress to meet these priorities.  ONDCP will also work closely with State, local, and Tribal governments, especially around efforts to ensure that opioid lawsuit settlement funds are used on programs that strengthen the nation’s approach to addiction.

April 2, 2021 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, March 26, 2021

Senators Durbin and Lee re-introduce "Smarter Sentencing Act" to reduce federal drug mandatory minimums

As detailed in this new press release, it looks like some notable US Senators are trying yet again to reform federal mandatory minimums.  Here are the basics from the release:

Sen. Mike Lee (R-Utah) cosponsored the “Smarter Sentencing Act,” bipartisan legislation designed to bring judicial discretion and flexibility to non-violent drug charge sentencing. The bill is sponsored by Sen. Dick Durbin (D- Ill.) and cosponsored by 11 of their colleagues.

Since 1980, the number of inmates in federal prison has increased by 653%.  About 50% of those federal inmates are serving sentences for drug-related offenses, increasing the taxpayer burden by more than 2,000%.  In short, federal incarceration has become one of our nation’s biggest expenditures, dwarfing the amount spent on law enforcement.

Our burgeoning prison population traces much of its growth to the increasing number and length of certain federal mandatory sentences.  More than 60% of federal district court judges agree that existing mandatory minimums for all offenses are too high.  In the words of the members of the bipartisan U.S. Sentencing Commission, “the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently . . . .”

“Our current federal sentencing laws are out of date and often counterproductive,” said Sen. Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo.  The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said.  “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Lee and Durbin first introduced the Smarter Sentencing Act in 2013.  Several important reforms from the Smarter Sentencing Act were included in the landmark First Step Act, which was enacted into law in 2018.  The central remaining sentencing reform in the Durbin-Lee legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.  The Congressional Budget Office has estimated that implementation of this provision would save taxpayers approximately $3 billion over ten years.

The full list of cosponsors includes: Sens. Patrick Leahy (D-Vt.), Roger Wicker (R-Miss.), Sheldon Whitehouse (D-R.I.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Ct.), Tammy Baldwin (D-Wis.), Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), Angus King (I-Maine), and Tim Kaine (D-Va.).

I am not particularly optimistic that the SSA will make it through Congress this time around, but I should note that prior iterations of this bill got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to "work for the passage of legislation to repeal mandatory minimums at the federal level."  Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not got far enough because it merely seeks to "reduce mandatory minimum penalties for certain nonviolent drug offenses," rather than entirely eliminate them.

March 26, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (4)

Wednesday, March 24, 2021

Notable Seventh Circuit panel finds insufficient explanation for revoking supervised release for missed drug test and assessments

Late last week, a Seventh Circuit panel handed down an interesting and seemingly important ruling in US v. Jordan, No. 19-2970 (7th Cir. Mar. 18, 2021) (available here). The 10-page unanimous ruling should be of interest to all federal sentencing fans because the ruling gives some teeth to "the parsimony principle of 18 U.S.C. § 3553(a)," but it also ought to be of interest to any other criminal justice fans concerned about drug policy and about how community supervision and revocations can undergird mass incarceration.

The start of the opinion highlights why the Jordan ruling caught my attention:

During his first three months while on supervised release, Anthony Jordan consistently tested negative on drug tests and called the probation office to find out about his next required tests.  Nonetheless, over two days in June 2019, he missed a drug test and two assessments, prompting his probation officer to petition to revoke his supervised release. The district court ruled that Jordan had committed the violations, revoked his supervised release, and sentenced him to six months in prison followed by 26 months of supervised release (including 120 days in a halfway house).  Jordan has appealed.  We conclude that the district court did not sufficiently explain its decision, consider Jordan’s defense that his violation was unintentional, or otherwise ensure that its sentence conformed to the parsimony principle of 18 U.S.C. § 3553(a).  We therefore reverse the judgment.

And here are excerpts from the heart of the opinion (which is very much worth reading in full, in part because it notes that the feds here "asked for 14 months of imprisonment"), as well as its closing paragraph:

Jordan’s core claim is that the district court failed to sufficiently justify both the revocation and prison sentence.  He invokes the due process clause of the Fifth Amendment, but we think this case fits better within “the supervisory power of an appellate court to review proceedings of trial courts and to reverse judgments of such courts which the appellate court concludes were wrong.” Cupp v. Naughten, 414 U.S. 141, 146 (1973).  This authority permits us to require sound procedures that are not specifically commanded by the statutes or other relevant provisions.  Thomas v. Arn, 474 U.S. 140, 146–47 (1985); Terry v. Spencer, 888 F.3d 890, 895 (7th Cir. 2018).

Under our supervisory authority, we see two flaws in the district court’s procedures and decision. First, the district court did not mention, let alone adequately explain, its rejection of Jordan’s defense that he lacked intent to violate the conditions of supervised release and had made reasonable and good faith attempts to comply.  Such an explanation is required.  United States v. Hollins, 847 F.3d 535, 539 (7th Cir 2017).  The need to address the defense is particularly important here because, before hearing a word of testimony, the court told Jordan that it was adopting the findings of violations from the probation officer’s memo.  We do not know why the court seemed to make findings about violations before the planned hearing on whether violations occurred.  But because it seemed to signal its view of the facts before hearing any evidence, we think that after the court heard the evidence, it needed to explain why that evidence did not move the court from that earlier view.  And it did not do so here.  We hasten to add that a revocation may have been justified.  We recognize that the testimony of offenders on supervised release might not be credible, and we know that district judges may hear a lot of creative excuses for failing to comply with conditions of supervised release.  But without an evaluation of the defense, we cannot review whether the district court’s rationale for rejecting it was permissible.

Second, the district court did not adequately explain its decision to imprison Jordan again for six months.  Sentences must always conform to the “broad command” of the parsimony principle, which requires that sentences be “‘sufficient, but not greater than necessary to comply with’ the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a). This principle is especially important in a case like this where the alleged violations were not criminal, the defendant asserted a lack of intent, and there was evidence of reasonable efforts and good faith, putting in question which of the purposes of sentencing apply.

The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society.  Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.”  Johnson v. United States, 529 U.S. 694, 708–09 (2000).  Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition....

We do not mean to imply that imprisonment may never be the appropriate response to violations like those charged here, missing a drug test and appointments for treatment. The district court may have had in mind the notion that the assurance of reimprisonment — even for a short time for intentional or even careless violations — deters future violations. We understand that different judges have different philosophies in balancing the factors under § 3553(a). But the district court needed to say explicitly why it thought that six months in prison was necessary for a defendant who had tested negative on every test and committed no other violations.

March 24, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, March 20, 2021

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

March 20, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, March 19, 2021

Small, and not quite steady, reform progress in a not quite new era for criminal justice reform

An interesting set of new press pieces highlight ways in which the criminal justice times seem to be a-changing during the Biden era, but not yet quite as much or as fast as lots of advocates might be hoping or expecting.  Here they are with a brief excerpt:

From BuzzFeed News, "COVID-19 Has Torn Through Prisons. Advocates Want Biden To Act Now"

Nearly all of the groups who spoke with BuzzFeed News said that they’ve participated in briefings and have had conversations with White House staff to raise concerns about BOP policy, including compassionate release and underused policies to thin prison populations during the pandemic.  Advocates have specifically pushed the administration to direct the BOP to use its expanded authority to grant home confinement under last year’s coronavirus relief plan.

Advocates have had a mixed response to those conversations, with optimism about prospective change mingled with frustration about slow-moving progress.

From Slate, "The Biden Administration Takes a Step Toward Undoing the Damage of the War on Drugs"

In September, [Tarahrick] Terry petitioned the Supreme Court saying he qualified for a sentence reduction [of his 188-month sentence for possessing 3.9 grams of crack cocaine in 2008], because the First Step Act made 2010’s Fair Sentencing Act retroactive. His case got a boost earlier this week, when President Biden’s Justice Department informed the Supreme Court they believe that Terry, and others who were incarcerated for low-level crack cocaine offenses, should have their sentences reduced under the First Step Act. The court plans to hear the case later this year.

From Vox, "The EQUAL Act would finally close the cocaine sentencing disparity"

Reps. Don Bacon (R-NE) and Kelly Armstrong (R-ND) have already cosponsored [the EQUAL Act]. But in a statement to Vox, Bacon was less optimistic about the timeline, even as he said that eliminating the cocaine sentencing disparity is only one part of a broader justice reform push he wants to tackle.

“While I am optimistic it will be voted on in the House this Congress, I don’t have a projected timeline for the bill at this stage and hope to gain more bipartisan support as it makes its way through the legislative process,” he said. The Senate is where it will be more critical to find Republican support, considering the chamber’s 50-50 split. Thus far, only Sens. Cory Booker and Sen. Dick Durbin (D-IL) have signed on.

Sen. Chuck Grassley, who worked with Durbin to introduce and shepherd the First Step Act through the Senate, would be a critical part of any bipartisan negotiation. In a statement to Vox, a spokesperson for Grassley said he was receptive to working with Democrats on the EQUAL Act, but that that process had not begun yet.

March 19, 2021 in Criminal justice in the Biden Administration, Drug Offense Sentencing, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, March 17, 2021

Reviewing all the notable criminal justice work of the Washington Supreme Court in recent times

Regular readers have likely noticed pretty regular posts about pretty notable criminal justice rulings coming from the Supreme Court of Washington. In this Slate piece, Mark Joseph Stern tells the story of this court's recent personnel changes and reviews some of these rulings. The piece, which is fully headlined "Washington State Shows How a Truly Progressive Court Changes Everything: Joe Biden should look to the state’s diverse and courageous Supreme Court when making nominations to the federal bench," starts this way (with links from the original):

The Washington Supreme Court is on a roll.  On March 11, it took the unprecedented step of outlawing mandatory sentences of life without parole for people under the age of 21 — making Washington the first state in the nation to extend such protections to defendants who, while technically adults at the time of their crime, have greater potential for rehabilitation because of their youth. The previous month, a majority of the court struck down Washington’s drug possession law, effectively legalizing possession of controlled substances while overturning thousands of convictions going back decades.  And, in January, the court made it easier for victims of police misconduct to sue law enforcement officers who violate their rights.

This extraordinary series of decisions shows how a diverse and progressive judiciary can make the country a more just and equitable place. The Washington Supreme Court’s members exemplify the kind of judges whom Joe Biden should be looking for as he prepares to announce his first slate of judicial nominees. To counter the current dominance of conservative ideology in the federal judiciary, liberals can’t rely on moderates committed to minimalism; they need a distinct vision of the law as a force of justice that guarantees equal rights and dignity to those who are impoverished, unpopular, and powerless. To find one, they need only look to Washington state.

Because it interprets its own state constitution, the Washington Supreme Court has much more leeway than a federal court to depart from SCOTUS jurisprudence.  States’ high courts have final say over the meaning of their own state constitutions, which gives justices room to expand rights that SCOTUS has constricted under the federal Constitution. Many state constitutions, including Washington’s, provide greater protections than the federal Constitution.  That’s why, in 2018, the Washington Supreme Court has permanently banned the death penalty and prohibited sentences of life without parole for juveniles—two steps SCOTUS has refused to take.

Those decisions were a preview of things to come. In 2019 and 2020, Democratic Gov. Jay Inslee appointed two new justices to the court: Raquel Montoya-Lewis, a Jewish Native American woman, and Grace Helen Whitener, a disabled Black lesbian immigrant.  (In November, the state voted overwhelmingly to keep both women on the bench.)  There, they joined Justice Mary Yu, an Asian American Latina lesbian, as well as Steven González, the current chief justice, who is Hispanic, and one of just two men on the nine-member court.  Inslee’s appointees created the most diverse high court in American history.

March 17, 2021 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, March 16, 2021

Amusing (but still quite serious) reminder of what not to do while awaiting federal sentencing

A Sixth Circuit panel yesterday issued a notable (unpublished) opinion in US v. Cadieux, No. 20-1689 (6th Cir. Mar. 15, 2021) (available here).  It is hard not to be somewhat amused by the facts of the case, but it is still important not to downplay the serious sentencing realities involved.  Here are the factual basics:

Cadieux was involved in a Michigan conspiracy to distribute marijuana in which he grew and then sold at least 100 pounds of processed marijuana over the course of two years to Andrew Bravo who then sold the drugs to others.  Cadieux was arrested and charged in December 2019 for his role in this drug-trafficking conspiracy.

He was very cooperative in the case against him.  Shortly after his arrest, he gave the government information and testified before a grand jury.  And after the court released him on bond, Cadieux entered into a plea agreement and pled guilty to conspiracy to manufacture, distribute, and possess with intent to distribute 50 kilograms or more of marijuana. While out on bond, however, Cadieux also made some poor choices.

First, he violated his conditions of release when he ate a marijuana brownie, tested positive for marijuana three times, and took two Adderall pills prescribed to someone else. Second, he discussed details of his pending criminal investigation on a local radio show, “Free Beer and Hot Wings,” after the hosts asked listeners about the easiest money they had ever made.  Cadieux told the hosts that he had made about three million dollars in past three years growing and selling marijuana.  He acknowledged that he was going to prison for it.  But he said “it was worth it” because he was only going to prison for 15 to 24 months, and he could keep the money he made because he was “good at hiding” it. (R. 173, Presentencing Report, PageID 331.)  He told them his plan was to “get out and do it again,” but he said that the next time he was “gonna do it legally . . . but in [his] wife’s name” because he couldn’t “do it in [his] name no more.” (First Call.)  One of the hosts responded, “yeah, you’ll be a felon . . . .” (Id.)  Third, after realizing the call had been a mistake, Cadieux called again and asked the show to “dump a cup of coffee on the sound board and get rid of the call” because the call had upset his attorney. (R. 185, Sentencing Hearing, PageID 597.) He offered to pay for a replacement.

After Cadieux’s call to “Free Beer and Hot Wings,” the government investigated Cadieux’s concealment of drug money.  It “identified significant sums of unexplained cash hid[den] in his bank accounts.” (Id. at 602.)  And Cadieux agreed to voluntarily forfeit $75,000, which the government believed more accurately represented his drug profits than Cadieux’s statements on the air.

Critically, Cadieux's calls into the "Free Beer and Hot Wings" radio show ended up costing him a lot more than the forfeited $75,000.  Specifically, as a direct result of this call and his other pre-sentencing behavior, "probation’s presentence report (PSR) recommended an enhancement for obstruction of justice and refused to recommend a reduction for acceptance of responsibility."  The sentencing court adopted these recommendations:

It found that Cadieux was not entitled to the acceptance-of-responsibility reduction for two reasons: 1) Cadieux’s statements on the radio show indicating his intent to “go right back to it” coupled with his attempts to destroy the recording and 2) Cadieux’s continued drug use in violation of bond conditions. (Id. at 609-11.) It found the obstruction enhancement appropriate because “the phone calls were relevant for sentencing”; it was particularly troubled by “the request of the radio station to ditch the tape.” (Id. at 610.) The court sentenced him to 37 months.

The Sixth Circuit panel affirms these determinations and upholds the 37 month sentence.  Given that the defendant here might have only been looking originally at a little more than year in prison, it seems that his foolish braggadocio and related pre-sentencing behavior cost him more time in prison than his offense behavior of conspiring to distribute 50 kilograms or more of marijuana.

March 16, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3)

Monday, March 15, 2021

"Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues Confirmation"

Fentanyl-Analogues-Conference_for-social_v3-1536x858The title of this post is the title of this exciting multi-panel event taking place tomorrow that is being hosted by Ohio State's Drug Enforcement and Policy Center. The full agenda for the event is avalable at this link, and the speakers are profiled at this link, and background materials are assembled here.

Here is a description of the event from the DEPC main event page:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills. In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this invitation-only symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that classwide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths.  Participants will learn about the relationship between classwide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose. P articipants will be presented with an intersectional discussion of the issue that examines classwide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

As this description reveals, this event started as an "invitation-only symposium," but ir is now possible for folks to register for the event at the DEPC main event page.

March 15, 2021 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Thursday, March 11, 2021

US House subcommittee holds hearing on "Controlled Substances: Federal Policies and Enforcement"

As detailed at this link, the US House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing this morning on "Controlled Substances: Federal Policies and Enforcement."  Here were the witnesses:

Nicole M. Austin-Hillery Esq., Executive Director, US Program, Human Rights Watch

Dr. Howard Henderson Ph.D., Founding Director, Center for Justice Research, Texas Southern University Nonresident Senior Fellow in Governance, The Brookings Institution

Derek Maltz, Former Special Agent in Charge, DEA's Special Operations Division

Dr. Katharine Neill Harris, Alfred C. Glassell, III, Fellow in Drug Policy, Rice University's Baker Institute for Public Policy

House Judiciary Committee Chairman Jerrold Nadler released this statement in conjunction with the hearing, and here is an excerpt:

"This Congress, we need to continue our committee’s work to take steps to 'right the wrongs' from the failed drug war.  As we have all seen, that failure has been both exorbitantly expensive and frequently counterproductive, producing staggering incarceration rates for drug offenses and immeasurable harm to families, especially those coming from low-income or minority communities.

"As our witnesses will highlight today, too many people are serving unjustly lengthy prison sentences as a result of laws that were enacted decades ago imposing mandatory minimum sentences.  That approach was wrong then — and it continues to be wrong — disparately impacting minority communities, while fueling mass incarceration.

"Mandatory minimum penalties are unwise, unjust, and unfair.  The status quo is unacceptable and we need to take a hard look at reforming these penalties....

"For far too long, we have treated marijuana as a criminal justice problem instead of as a matter of personal choice and public health. Whatever one’s views are on the use of marijuana for recreational or medicinal use, the use of arrests, prosecution, and incarceration at the federal level has been both costly and biased.

"I have long believed that the criminalization of marijuana has been a mistake, and the racially disparate enforcement of marijuana laws has only compounded this mistake, with serious consequences, particularly for minority communities.

"Thousands of individuals — overwhelmingly people of color — have been subjected by the federal government, to unjust and lengthy prison sentences for marijuana offenses. This needs to stop.

"That is why I will be reintroducing the MORE Act to remove marijuana from the Controlled Substances Act and to provide restorative justice for communities that have been disproportionally impacted by the War on Drugs.

"We also need to learn lessons from programs and alternatives that have been successfully pursued at the state and local level, not just with marijuana but with other drugs as well.  For instance, Law Enforcement Assisted Diversion Programs, known as LEAD, allow law enforcement to divert appropriate arrestees from criminal court, and instead to provide treatment and other services that address addiction and reduce recidivism.

"Developed and initially implemented in Seattle, the LEAD approach is now being used with success in other areas.  We should support these efforts, as well as other innovative approaches at the local level, such as medication assisted treatment, supervised injection facilities, expanding the availability of overdose reversal drugs, and better education of doctors and the public about the proper prescription and use of opioids as pain medication.

"We will not be able to arrest and incarcerate our way out of a drug abuse crisis that has many causes.  Instead, we must support the development and implementation of a variety of solutions as we consider our contribution to addressing this crisis. Additional reform is long overdue...."

March 11, 2021 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Wednesday, March 03, 2021

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

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

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

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

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

Friday, February 26, 2021

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

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

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

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

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

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

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

Thursday, February 25, 2021

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

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

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

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

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

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

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

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

"Merrick Garland, cannabis policy, and restorative justice"

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

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

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

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

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

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

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

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

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

Monday, February 22, 2021

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

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

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

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

Thursday, February 18, 2021

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

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

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

Panelists

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

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

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

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

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

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

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

Tuesday, February 16, 2021

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

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

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

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

Sunday, February 14, 2021

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

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

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

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

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

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

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

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

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

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

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

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