Monday, November 12, 2018

Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

The New York Times and CNN are reporting this evening on the latest chapter in efforts to enact significant federal criminal justice reforms.  This lengthy New York Times piece is headlined "Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump," and here are excerpts:

A bipartisan group of senators has reached a tentative deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.  The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

It would also retroactively extend a reduction in the sentencing disparity between crack and powder cocaine signed into law in 2010, potentially affecting thousands of drug offenders serving lengthy sentences....

The support of the famously mercurial Mr. Trump is by no means guaranteed.  But if they can secure an endorsement, senators say they can move quickly on the kind of bipartisan achievement that has eluded Mr. Trump — and bedeviled senators and outside advocates of the overhaul for years....

If Mr. Trump supports the package, senators will still be up against a rapidly closing legislative window — Congress is set to break in mid-December — and certain opposition from conservative Republicans in both the Senate and the House. Democrats could also throw up roadblocks if liberals think they could get a better deal once Democrats take control of the House....

Lawmakers may have also gotten a boost with the departure of Jeff Sessions as attorney general last week. Mr. Sessions had used his post to order federal prosecutors to pursue the toughest possible charges and sentences for crime suspects, reversing Obama-era efforts to ease such penalties for some nonviolent drug offenders.  And he vigorously opposed legislative compromise, going head-to-head not only with Mr. Grassley but also with Mr. Kushner.

Mr. Kushner has had several meetings with Matthew G. Whitaker, the new acting attorney general, who has signaled that he is open to the changes.  The effort could be revived in the next Congress if he and allies are unable to succeed in the short term. Mr. Kushner has also traveled with Vice President Mike Pence in recent days to brief the vice president on the latest developments, the administration official said.

This CNN report is headlined "Senators, Kushner prepare to launch sentencing overhaul push in lame duck session," and starts and ends this way:

White House officials and a bipartisan group of senators are mounting an ambitious effort to push criminal justice legislation through Congress by the end of the year, four sources close to the process told CNN.

But first, Jared Kushner, President Donald Trump's son-in-law and senior adviser, who has been leading the White House's prison and sentencing overhaul push, must ensure the President is on board with the latest version of the measure.  Kushner is slated to meet with Trump on Tuesday to press him to back the legislation, a senior administration official said....

One person close to the matter said that while the prospects for the measure several weeks ago seemed glum, its odds of passing now are above 50%.  The White House and Republican leaders on Capitol Hill agreed in August to postpone the legislation until after the midterm elections.

One source close to the process said that after the midterms -- which will bring shifting partisan dynamics to Congress in January -- White House officials working on the effort recognized they needed to move forward now.  "It's the lame duck or never strategy," one source close to the process said.

November 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

More encouraging clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  A helpful reader alerted me to notable additional news on this front reported in this two local articles:

"Board recommends clemency for 22 drug possession offenders." Excerpts:

Nearly two dozen offenders were recommended for clemency Wednesday, the first wave of hopefuls for early release from lengthy felony prison sentences for simple drug possession two years after voters approved turning that crime into a misdemeanor. State Question 780 isn’t retroactive, so Project Commutation sought deserving prisoners who were considered ideal candidates to have their sentences drastically shortened in line with the sentencing reform measure.

Kris Steele, chairman of Oklahomans for Criminal Justice Reform, is spearheading the movement and a member of the board voting on the commutation requests. Steele said a governor’s staff member was present for Wednesday’s all-day proceedings and expressed to him that Gov. Mary Fallin is committed to signing off on the cases before the new year.

The commutations modify sentences but don’t erase convictions. Fallin has final authority to approve, deny or modify the Oklahoma Pardon and Parole Board’s recommendations within 90 days. “Gov. Fallin has been monitoring these cases closely and has taken an interest in trying to expedite the process of the governor’s approval, with the intent, as I understand it, to get these individuals home together with their families by the end of the year,” Steele said.

Twenty-three offenders had their cases for commutations heard Wednesday by the five-member pardon and parole board. Only one offender failed to garner a simple majority vote, with concerns about misconduct in prison perhaps influencing decisions. Oklahomans for Criminal Justice Reform launched Project Commutation in partnership with the Tulsa County Public Defender’s Office. Another eight applicants — the final ones in this commutation campaign — will be on the docket in December.

Starting July 1, 2017, State Question 780 made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. The maximum sentence for simple drug possession now is one year in jail.  Sentences considered Wednesday were for between 10 years and 40 years long, with time served from five months to nearly three years.  “Twenty-two of 23 of the people that we helped with applications were mothers in prison serving decades had they not gone through this process,” said Corbin Brewster, Tulsa County chief public defender.  “The impact beyond the incarceration on their families is just enormous.”...

University of Tulsa law students helped to interview and whittle down a field of 700 applicants to 49 for the first stage of the commutation process. There are 31 who made it through to the second and final stage before the governor’s desk.

"Oklahoma group wants to build on success of commutation project for prisoners with drug possession charges." Excerpts:

During commutation hearings last week, offenders offered numerous reasons for why they were unable to succeed in alternative drug courts. Failing stuck them with lengthy prison sentences for possessing drugs.

Project Commutation has been an opportunity for a handful of convicts to earn another shot at a new life, advocating for clemency after State Question 780 turned simple drug possession into a misdemeanor rather than a felony.  But Oklahomans for Criminal Justice Reform wants more — the advocacy group intends to encourage lawmakers in the upcoming legislative session to apply the law retroactively.

“The Legislature will kick off in early February, and we are urging them to look at these sentences,” said Danielle Ezell, an OCJR board member, as she stood outside the correctional center where the commutation hearings took place Wednesday. “There’s over 1,000 folks in for simple drug possession that, if charged today, would not be incarcerated. And we would like to see those charges (retroactively addressed).”

Prior related posts:

November 12, 2018 in Clemency and Pardons, Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Friday, November 09, 2018

Despite Issue 1's overwhelming defeat, Ohio leaders still talking optimistically about state criminal justice reforms

I have been worried that this week's overwhelming defeat of the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, could mean that long-stalled major reform efforts in Ohio would remain stalled.  But this local article, headlined "After Issue 1 fails, state leaders vow to take up criminal justice reform," provides an encouraging outlook on the prospects of reform in the Buckeye state through the usual legislative channels. Here are excerpts:

After voters statewide rejected Issue 1 this week, state lawmakers are ready to move forward on criminal justice reforms, legislative leaders said Thursday.

Ohio’s “big three” political leaders — Senate President Larry Obhof, House Speaker Ryan Smith, and Gov.-elect Mike DeWine — each applauded the failure of State Issue 1, a proposed constitutional amendment that would have changed criminal sentences. Voters rejected it 36.6 percent to 63.4 percent, according to unofficial results. Judges and elected Republicans largely opposed Issue 1, saying it was a flawed proposal that didn’t belong in the Ohio Constitution.

Obhof, R-Medina, said Thursday he will introduce a bill in the upcoming weeks that calls for reducing low-level drug felony offenses to misdemeanors; install a presumption for probation over prison if the offender agrees to drug treatment; allow people currently incarcerated for certain drug crimes to petition the court to be re-sentenced.

The bill will be based on a proposal developed by Franklin County Prosecutor Ron O’Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat. The two ran against one another in 2016.

Obhof wants to take quick action on the bill, before Gov. John Kasich leaves office and the current legislative session ends. However, if it doesn’t get through by the end of the year, he plans to bring it back next year.

DeWine said criminal justice reform would be a priority for his administration, which starts in January, but he did not provide details of how that might take shape.

For the past year, policy leaders have been doing a deep dive into Ohio’s interconnected criminal justice issues: prison overcrowding, the opiate crisis, mental health treatment, falling crime rates, rising murder and assault rates, recidivism rates and more. A final report will make recommendations for lawmakers to consider in 2019.

Nearly 60 percent of all felony sentences in Ohio are for drug and property crimes, according to the Council of State Governments analysis of Ohio Bureau of Criminal Investigation and Identification data.

And while Ohio’s recidivism rate — those returning to prison within three years of release — is lower than the national rate, it crept up 1.5 percentage points to 30.73 percent, according to the Ohio Department of Rehabilitation and Correction. “That concerns me but it’s good that we’re still substantially better than the national average. I still think that our prison population is too high,” Obhof said.

November 9, 2018 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, November 07, 2018

Method matters: initial thoughts about Issue 1's big loss in Ohio

Regular readers know I had been following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio known as Issue 1.  A variety of factors had led me to expect that Issue 1 would lose, but surprisingly strong polling and all the "blue wave" talk had me thinking it might have a shot.   I certainly did not expect that it would get crushed, going down to defeat 63.5% to 36.5%. 

Issue 1's huge 27%-point loss is startling given that Ohio's Democratic Senator Sherrod Brown won re-election by 6% points and its Democratic Governor candidate Richard Cordray, who endorsed Issue 1, lost by only 4% points.  This means that a huge number of progressively minded voters decided to vote for liberal candidates and against Issue 1.  (A county-level analysis highlights this reality in various ways: e.g., in Lucas County (where Toledo is located), Senator Brown prevailed by 33% points, but Issue 1 still lost that county by 4% points.)

Issue 1's huge 27%-point loss is even more startling given that a somewhat similar ballot initiative in 2016 passed in Oklahoma with flying colors, winning by 16% points with a margin of 58% to 42%.  Given that Oklahoma is a seemingly much "redder" state than Ohio and that 2016 was seemingly a somewhat "redder" election than 2018, the 43% difference in outcomes in these initiatives leads me to the (obvious?) conclusion that just how a criminal justice reform is pursued through a ballot initiative can make a VERY big difference.

Of particular significance, it seems, is both the form of the initiative and who is part of the reform team.  In Oklahoma, the 2016 initiative sought a fairly modest statutory change; in Ohio, the 2018 initiative pursued a fairly aggressive set of reforms that would be locked into the state constitution.  Perhaps even more importantly, legislative "insiders" and other state GOP leaders were integrally involved in drafting and getting the Oklahoma initiative on the ballot in 2016.  The same type of insiders seemingly had no role in the Ohio campaign, and thus nearly all of them -- most notably, all the GOP candidates and many prominent judges, prosecutors and police -- actively campaigned against Issue 1.

I am hopeful state-level reformers in Ohio and elsewhere will continue to see the potential that direct democracy provides.  But reformer can and should learn from losses as well as victories, and there seems to be a lot to learn after a big loss in Ohio.

November 7, 2018 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, November 06, 2018

Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

As noted in prior posts here and here, a whole lot of criminal justice matters were before voters this year. And though results are not yet official, it seems there are a few notable winners and one big loser:

Florida's Amendment 4, which would restore people’s voting rights after they finish their sentences (with a few exceptions), and Amendment 11, which enables the repeal or reform of criminal laws to be applied retroactively, both appear on pace to pass.

And Louisiana's Amendment 2, eliminating non-unanimous jury verdicts in felony trials, also looks to pass.

But Ohio's Issue 1, which sought to reduce all drug possession offenses to misdemeanors and enhance sentence reductions for prisoners participating in rehabilitative programs, has been soundly defeated.

November 6, 2018 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, November 03, 2018

Buckeyes take the field to make forceful case for criminal justice reform through support for Issue 1

Download (23)Regular readers know I am following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, now known as Issue 1.  (The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1.)  Regular readers also know that I am a sports fan who is always intrigued and excited when prominent athletes take an interest in criminal justice reform issues. 

For all those reasons, I am especially drawn to this new commentary authored by Malcolm Jenkins and Austin Mack under the headline "Vote Yes on 1: Why We Must Treat and Not Jail Addiction."  I recommend the commentary in full and here are excerpts:

Mass incarceration is the most urgent civil rights issue of our time.  America’s stubborn commitment to the failed war on drugs, tough-on-crime policies, and lengthy prison sentences has resulted in the caging of a breathtaking number of black and brown people.  These policies have not made us safer, and they have not addressed the underlying causes of crime, such as poverty, mental illness, a lack of access to health care, and relatedly, substance abuse.  Instead, these policies have ripped apart families and neighborhoods, leaving a blight on communities of color that will last for decades unless we immediately reverse course.

These ineffective policies have been on full display in Ohio, which has an incarceration rate higher than any other country in the world (other than the United States).  It has the fourth highest total prison population in the U.S. and its prisons sit at 130 percent capacity.  Ohio’s zest for incarceration is costly  —  the prison’s budget is $1.8 billion a year. While other states are starting to reduce both their crime rates and prison populations through evidence-based reforms, Ohio has largely stayed the course of mass incarceration, cramming more and more people into eight by ten cells.  The population is projected to keep growing, costing Ohioans more and more.

But this November, we have a chance to change direction and be a leader in the criminal justice reform movement.  On the ballot is State Issue 1, which will convert many crimes of addiction from felonies to misdemeanors. Instead of going to state prison, people convicted of low-level drug possession will receive treatment, supervision, or county jail. They would not be saddled with a felony conviction, which can mean a lifetime of barriers to employment, housing, and more. Instead, they would have access to critical treatment.  And Ohio would invest the money saved in people — in badly needed treatment and in services for crime victims.

This will make us safer.  Prosecutors and law enforcement can focus on more serious offenses like drug trafficking, which remains a felony. Meanwhile, people who suffer from addiction can stay out of prison and receive the treatment and services they need. In the long run, this will mean more jobs.  And more jobs means less crime.  Voting in favor of Issue 1 is, in this way, a no brainer....

Righting the harsh injustices of the failed war on drugs is long overdue.  Drug arrests and prosecutions consistently affect black communities at an alarming rate that is far greater than white communities. In 2006, for example, police arrested black Ohioans at nearly 6 times the rate of white Ohioans.  85 percent of those arrests were for use, or possession, offenses. Issue 1 can’t right our past wrongs, but it can prevent some of them from happening in the future.

As student athletes (and a proud alum) at the best university in this country and in one of the greatest states, we know Ohioans want what is fair for all communities.  Some use fear mongering to divide us, but we know Ohioans know better than that.  We can do better  —  we can lead in reform, rather than fall behind.  We can be fair and compassionate, rather than pursuing the same old policies that crowd our jails and prisons and make us less safe. O-H-I-O.  Vote yes on Issue 1 this November.

For those who do not recognize the names of these authors of this commentary, here is the "About the Co-Authors" description:

Malcolm Jenkins is the Co-Founder of the Players Coalition, a 2018 Super Bowl Champion Safety for the Philadelphia Eagles and an alum of The Ohio State University.  Players Coalition is an independent 501c3/501c4 organization led by professional athletes to impact social and racial inequality.  Visit www.players-coalition.org for more information and follow us at @playercoalition.

Austin Mack is a Wide Receiver for the football team and President of “Redefining Athletic Standards” at The Ohio State University. This Op-Ed is supported by its fellow members.

Prior related posts:

November 3, 2018 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"The Power and Prejudice of DAs on Drugs"

03c3e6a3-d023-4cc0-aef0-579709278f31The title of this post is the title of this interesting investigation by Rory Fleming published at Filter, which is a relatively new resource seeking "to advocate through journalism for rational and compassionate approaches to drug use, drug policy and human rights." I recommend the piece in full, as well as these associated "Interactive Graphics," and here is how it gets started:

Public opinion is souring on the criminalization of drug use. But what prevents this from translating into practice?

While politicians makes laws and police officers can arrest whoever they find in possession of drugs, it’s prosecutors who turn arrests into criminal charges. Prosecutors have the final say in who to charge with a crime, which charge to use, and what punishment will be sought. In short, they’re in a position to inflict great harm.

Amy Weirich, district attorney for Shelby County, Tennessee (which includes Memphis), charged women with child abuse for being dependent on drugs while pregnant. She justified this by stating that she uses the “velvet hammer” of drug court to force them into treatment.

In Tucson, Arizona, Pima County Attorney Barbara LaWall sent the ACLU a cease-and-desist letter to try to stop the organization from talking about her support of mandatory minimum prison sentences for drugs.

Commonwealth’s Attorney Raymond Morrogh of Fairfax, Virginia went to Washington, DC to accuse former US Attorney General Eric Holder of trying to reward drug prisoners with “lighter sentences because America can’t balance its budget.”

There are over 2,000 elected local head prosecutors, most commonly known as district attorneys, in the United States. And overall, these powerful individuals do not care what people think about the War on Drugs. They are going to fight it anyway, and hope that the voting public doesn’t notice.

That is the conclusion of an exclusive investigation from Filter, which surveyed the top prosecutors of the nation’s 50 most populous counties. (We included incumbents, outgoing incumbents, incoming DAs and challengers, making 61 individuals in total.) ...

After collecting public statements and reviewing cases, we emailed each prosecutor a short questionnaire about their positions on four key issues: marijuana legalization, drug-induced homicide prosecutions, mandatory minimum sentences for drugs, and the criminalization of relapse.

Around half of their offices never responded, even after a round of reminders. We telephoned 10 offices, which listed no email address for a media representative on their government websites.  One of them — that of Wake County, NC District Attorney Lorrin Freeman—hung up immediately on hearing the word “reporter.”

Many of the prosecutors surveyed have stated publicly that we must treat drug use as a “public health issue,” rather than a criminal justice one. But our findings show that the vast majority nonetheless support or implement practices that drive criminalization, inequality and large-scale human suffering.

November 3, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Wednesday, October 31, 2018

Latest analysis and discussion of Ohio criminal justice reform ballot initiative known as Issue 1

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.  The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1

The last pre-election DEPC public panel on Issue 1 is taking place tomorrow, November 1 at 10 am (register here), at the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University.  The all-star panelists who will be speaking are:

Kyle Strickland, Senior Legal Research Associate at the Kirwan Institute will be moderating this great panel. I know Kyle will also be bringing an informed perspective to the discussion because he is a co-author of this great new report titled "Race & Criminal Justice: Ohio Issue 1 and Beyond."  Here is part of the conclusion of that report: 

Many communities are rightfully asking the question of why is the opiate epidemic the catalyst for modern criminal justice reform?  At the core of this question is the notion that broad-sweeping reform efforts are much more politically feasible when the issue also impacts communities with privileged identities — whether that be race, economic status, or party affiliation.  In the future, we should not wait for collective tipping points to address systemic inequities because policies that disproportionately harm marginalized communities harm us all.

Now that reform efforts are in motion, it is critical that a racial lens be applied to policies moving forward.  A reduction in racial disparities in the criminal justice system should not be an assumed outcome of reform.  Disparate outcomes will likely re-emerge in the health care system, community based corrections, and all other institutions without intentional effort paid to undoing our legacy of racism and discrimination.  A more equitable system will require explicit interventions to address systemic discrimination and interpersonal biases at every level.

Regardless of the outcome in November, communities must demand that those implementing Issue 1 or other criminal justice reform efforts be held accountable to reducing racial disparities and repairing the intergenerational harm caused by mass incarceration and decades of disinvestment.

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation"

6a00d83451574769e2022ad3762ba2200c-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided it into three posts to cover all she has to report.  The first post covered "Sentencing Victories," the second covered "Legal Victories" and this final one set out "A Path for Future Litigation":

A Path for Future Litigation

The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

Lawyers in other jurisdictions can use the litigation and precedents discussed above and in Parts 1 and 2 of this guest post series to fight race discrimination by law enforcement in their own cases.  Here are a few ideas:

  • Hire experts and gather data about racial disparities created by law enforcement in fake stash house robbery cases, gun cases, and others.
  • Litigate motions to obtain discovery regarding selective law enforcement in stash house cases and others, and ask district court judges to apply the lower evidentiary standard set by the Seventh, Third, and Ninth Circuits.
    • Appeal denials of selective enforcement discovery motions and advocate for other courts of appeals to adopt the lower discovery standard.
  • Litigate motions to dismiss for selective law enforcement in stash house cases and others, and ask district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.
    • Appeal denials of such motions to dismiss and advocate for other courts of appeals to adopt a preponderance of the evidence standard on the merits.
  • Use the plea agreements in the Chicago cases to advocate to U.S. Attorney’s Offices to dismiss mandatory minimum charges in fake stash house robbery cases.
  • Use the example of the Chicago U.S. Attorney’s Office to convince other USAOs to cease bringing fake stash house robbery cases altogether.
  • Use the time served sentences imposed in the Chicago cases to advocate for lower sentences in stash house cases elsewhere. Sentencing memoranda prepared by the Federal Criminal Justice Clinic in several of the Chicago cases can be found at these links:

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 28, 2018

Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

6a00d83451574769e201b7c9134b4d970b-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided into three posts all she has to report.  The first post covered "Sentencing Victories," and this one covers "Legal Victories":

Legal Victories

The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country.  Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.

In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers.  Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996).  Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721.  Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.

Last year, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims.  See United States v. Washington, 869 F.3d 193, 216 (3d Cir. 2017). But the Third Circuit took this distinction even further, definitively eliminating two requirements that had made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong.  Specifically, Washington jettisoned both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that “similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement,” and (2) the requirement that defendants “provide ‘some evidence’ of discriminatory intent. Id. at 221.  The Third Circuit’s elimination of these onerous standards represented an enormous development in the law of discovery for selective enforcement cases.

In United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), the Ninth Circuit built on the framework created in Davis and extended in Washington.  Interestingly, the Ninth Circuit joined the Third Circuit’s holdings without emphasizing or even mentioning that those holdings had dramatically lowered the legal standard.  First, the Ninth Circuit joined the Third in eliminating the biggest barrier to proving the first prong — discriminatory effect — by holding that a defendant could obtain discovery in support of a selective enforcement claim without providing “evidence that similarly-situated individuals of a different race were not investigated or arrested.” Id. at *6.  Second, the Ninth Circuit held that a defendant need not present evidence of both discriminatory effect and discriminatory intent to obtain discovery, but may simply present “some evidence” supporting one prong or the other. Id.  Sellers thus significantly expanded district court discretion to grant discovery.  Judge Nguyen’s concurrence went still further, explaining that evidence that law enforcement was targeting neighborhoods of color is itself proof of discriminatory effect. Id. at *11 (Nguyen, J., concurring).

Prior related post:

October 28, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 26, 2018

Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

6a00d83451574769e201b7c9134b4d970b-320wiI recently received a kind offer from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, for an update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic.  Alison's update is so detailed and interesting, I will need three posts to report all she has to report.  This first one covers what she calls "sentencing Victories":

The Federal Criminal Justice Clinic that I founded and direct at the University of Chicago Law School has engaged in systemic litigation against fake stash house robbery cases in Chicago. Our litigation has resulted in dramatically lower sentences for scores of clients and is changing the law around the country.

Sentencing Victories

Several years ago, the Federal Criminal Justice Clinic (FCJC) filed pretrial Motions to Dismiss for Racially Selective Law Enforcement on behalf of 43 defendants charged in the 12 pending fake stash house cases in Chicago, alleging that the ATF had unconstitutionally discriminated on the basis of race in targeting people of color.  The FCJC approached the legal issue of racially selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear.  See ATF Sting Operation Accused of Using Racial Bias in Finding Targets—the Majority of Them Being Minorities, Chicago Tribune (Mar. 3, 2017).  Last December, the 9 federal judges presiding over these cases held a joint evidentiary hearing on our motions, an unprecedented occurrence. See Was Racial Profiling Behind ATF Stash House Stings? Chicago Judges to Take Up Landmark Case Today, Chicago Tribune (Dec. 13, 2017); Court Decision Could Force Changes to ATF’s Undercover Operations, NPR: Morning Edition (Dec. 15, 2017).

When the FCJC began this litigation, our clients were facing 15-to-25-year mandatory minimums and far higher sentences under the federal Sentencing Guidelines.  In the wake of the hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory-minimum gun and drug charges. See Under Pressure by Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases, Chicago Tribune (Feb. 21, 2018).

Of the 43 clients who participated in our selective enforcement challenge, 34 have now been sentenced.  Fully 27 of the 34 received sentences of “time served,” despite requests by the government for within-Guidelines sentences that ranged as high as 12 years.  The remaining clients received significantly below-Guidelines sentences.  The chart linked here depicts these incredible outcomes and is being filed publicly with the judges to show that time-served sentences are now the norm in these cases.  As a result of the plea offers and time-served sentences, clients on bond were allowed to remain in the community, clients in custody were promptly released, and our clients collectively were spared hundreds of years in prison.  These remarkable results are attributable to the tremendous efforts of everyone in the FCJC: Professor Erica Zunkel (the Associate Director of the FCJC), Professor Judith Miller, and the many students who worked on the litigation.

These extraordinary sentencing outcomes show the power of litigating creatively and demonstrate that sometimes the fight alone can bring about systemic change, regardless of the legal outcome.  The FCJC did not win the motions to dismiss, but the U.S. Attorney’s Office and the ATF have entirely stopped bringing fake stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere.  The FCJC’s litigation also changed the judges’ perspective on these cases.  Although Chief Judge Castillo “reluctantly denied” the FCJC’s Motion to Dismiss in his two stash house cases, he wrote: “Our criminal justice system should not tolerate false stash house cases in 2018.”  United States v. Brown, 299 F. Supp. 3d 976, 984 (N.D. Ill 2018).  In particular, he said, “The inherent problems of this District’s false stash house cases must be seen through the lens of our country’s sad history of racism,” id. at 985, and implored the government to “relegat[e]” them to “the dark corridors of our past,” id. at 984; see also Editorial: Even Fighting Capone, Feds Knew Better Than to Resort to Cheap Tricks, Chicago Sun Times (Mar. 13, 2018).  In another FCJC case, Judge Gettleman issued a sentencing opinion “express[ing] this court’s disgust with the ATF’s conduct in this case.” United States v. Paxton, 2018 WL 4504160, at *2 (N.D. Ill. Sept. 20, 2018).

October 26, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, October 23, 2018

Another big accounting of the big failings of the global drug war

As summarized in this CNN piece, the International Drug Policy Consortium (IDPC) has produced a big new report saying "the United Nations' drug strategy of the past 10 years has been a failure." Here is more:

The report claims that UN efforts to eliminate the illegal drug market by 2019 through a "war on drugs" approach has had scant effect on global supply while having negative effects on health, human rights, security and development. According to the report, drug-related deaths have increased by 145% over the last decade, with more than 71,000 overdose deaths in the United States in 2017 alone. At least 3,940 people were executed for drug offenses around the world over the last 10 years, while drug crackdowns in the Philippines resulted in around 27,000 extrajudicial killings.

The IDPC, a network of 177 national and international NGOs concerned with drug policy and drug abuse, is urging the UN General Assembly Special Session on Drugs to consider a different approach to narcotics strategy for the next 10 years in the run-up to a March 2019 summit in Vienna, Austria. "This report is another nail in the coffin for the war on drugs," said Ann Fordham, the Executive Director of IDPC, in a prepared statement.

"The fact that governments and the UN do not see fit to properly evaluate the disastrous impact of the last ten years of drug policy is depressingly unsurprising. "Governments will meet next March at the UN and will likely rubber-stamp more of the same for the next decade in drug policy. This would be a gross dereliction of duty and a recipe for more blood spilled in the name of drug control."

Farhan Haq, deputy spokesman for the UN Secretary-General, responded to CNN's Richard Richard on Monday. "Obviously, there have been significant successes and failures in dealing with the problem of drug trafficking, and we've made that clear over the many remarks we've made about the drug problem each year," he said....

In 2017, Mexico, for example, recorded its most murderous year on record due to soaring levels of drug-related violence. As previously reported by CNN, the Mexican National Institute of Statistics and Geography revealed that there were 31,174 homicides over the course of the year -- an increase of 27% over 2016. In addition to fueling violence, the existing policy of criminalizing drug use has also resulted in mass incarceration, the report said. One in five prisoners are currently imprisoned for drug offenses, many on charges related to possession for personal use....

"What we learn from the IDPC shadow report is compelling. Since governments started collecting data on drugs in the 1990s, the cultivation, consumption and illegal trafficking of drugs have reached record levels," wrote Helen Clark, former Prime Minister of New Zealand and a member of the Global Commission on Drug Policy, in the report's foreword. "Moreover, current drug policies are a serious obstacle to other social and economic objectives and the 'war on drugs' has resulted in millions of people murdered, disappeared, or internally displaced."

The full report is available at this link.

October 23, 2018 in Drug Offense Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Should a state judge be campaigning against a state criminal justice reform initiative when talking to potential jurors?!?!?

I have been more than a bit troubled by the fact that Ohio Supreme Court Chief Justice Maureen O'Connor has been serving for months as the campaigner-in-chief against an interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1 (and the Drug Enforcement and Policy Center at OSU has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1).  One of my concerns has been that her visible role has put her in lock-step with advocacy by Ohio's prosecutors, and also seemingly has made many Ohio state judges feel comfortable speaking out against Issue 1 while making it hard for other state judges to feel comfortable speaking out for Issue 1.

Whatever one thinking about a judge or justice discussing their views on a ballot initiative in public, I am especially troubled by this story out of Cleveland that prompts the question in the title of this post.  The piece is headlined "Cuyahoga County judge politicks against Issue 1 to potential jurors inside courthouse," and here are the details:

A Cuyahoga County judge who is a vocal critic of a sentencing reform initiative on the ballot for the Nov. 6 election has taken his opposition to residents forced to show up for jury duty at the Justice Center.

Multiple times in recent weeks, Common Pleas Court Judge David Matia has used the time usually reserved for a judge to welcome the hundreds of potential jurors to their mandatory civic duty to instead deliver a spiel in which he explicitly urged them to vote against Issue 1.

Administrative and Presiding Judge John J. Russo does not object to Matia's actions, which Matia insisted in a Monday phone interview did not violate any judicial ethics rules. Judges are allowed to take public stances on issues that "directly affect the administration of justice," and it is up to a particular judge to determine when and where it is appropriate to make those comments, according to a 2002 advisory opinion by the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline.

"Whether it's a group of jurors or a bingo hall, it doesn't matter," Matia said. "The opportunity to educate the public should not be ignored by members of the judiciary."

But Matia's choice to deliver the message as part of the regular duties of his seat on the bench -- to a group of people with no choice to leave -- raises serious ethical questions, a legal expert said. "He's got a right to announce his views," Charles Geyh, a law professor at Indiana University, told cleveland.com. "What I don't like is he is using his judicial office as a vehicle for addressing a captive audience. That's where he's abusing the prestige of his judicial office."...

Matia said he has spoken to potential jurors three times. He said he has done so in addition to the judge on the schedule twice, and spoke on Wednesday in place of the judge who was supposed to address the room when that judge did not show up. He said he hit the usual talking points he hits when he speaks in public about the issue, and urged a "no" vote. "It's not a political issue," he said. "This is a matter directly affecting the administration of justice, and frankly it's our duty to educate the public on this issue and how it will affect the administration of justice."

Russo said in a statement through a spokesman that he "was made aware that his colleague has been speaking to jurors" about the measure. "Judge Matia is an elected Cuyahoga County official and is speaking to constituents about an issue that impacts the administration of justice in the state," Russo said in the statement.

Rick Dove, director of the court's Board of Professional Conduct, said this situation is not explicitly spelled out in any judicial ethics rules, or addressed in any advisory opinions. Dove pointed to the 2002 opinion, which came in response to a complaint filed over a judge's public endorsement of a proposed constitutional amendment that dealt with expanding the use of drug treatment in sentencing....

The board wrote that judges could address certain legal issues that affect the administration of justice, and that it was not inappropriate for judges to do so in newspaper editorials, radio and TV ads, public forums and other mediums. "No rule within the Ohio Code of Judicial Conduct, provides a list of appropriate forums for judicial speech," the board wrote. "A judge must exercise his or her discretion regarding appropriate forums for speaking to the public regarding the law, the legal system, and the administration of justice."

But Matia's advocacy did not occur at a forum or a public meeting where people came voluntarily to hear thoughts about the issue. It came inside the courthouse, to a group of people who had been summoned to perform a mandatory government duty. Matia carried the authority of being a judge inside the courthouse and acted within the scope of his judicial office when he took the stance, all to an audience who was not free to leave, Geyh argued. "He seems to be exploiting his role as judge to create this opportunity to vent his ideological point of view with respect to this view of legislation," Geyh said.

Matia called his advocacy at the courthouse "a non-issue, ethics wise." He sent a copy of the 2002 opinion to cleveland.com Monday in a text message after the phone interview for this story. "Just remember to vote no on [Issue] 1," Matia wrote, adding a smiley-face emoticon.

I am squarely with Professor Geyh on this one, and I have concerns about Judge Matia's actions that go beyond the specifics of talking about Issue 1 to a captive audience inside a courthouse. At least some of these prospective jurors are going to be asked to participate in cases that might involve applications of the laws and policies that are the subject-matter of Issue 1, and I worry about how the judge's comments may be impacting the jury pool beyond how the judge has become a campaigner for a partisan position in the courthouse.

Prior related posts:

October 23, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Friday, October 19, 2018

Rastafarian musician gets eight-year sentence after being found with 2.89 pounds of marijuana in car

I sometimes see reporters and others suggest that personal marijuana possession and use has already become essentially de facto legal throughout the country.  This story of a sentencing in Mississippi this week, headlined "Jamaican-born musician sentenced to 8 years in prison for marijuana he legally obtained," puts the lie to this suggestion. Here are the details:

A Jamaican-born musician convicted of drug trafficking in Madison County for marijuana he said he obtained legally in Oregon for his personal use received an eight-year prison sentence without parole Monday. Madison County Circuit Judge William Chapman said Patrick Beadle, 46, of Oregon, faced a maximum 40 years in prison after a jury convicted him in July under the state's drug trafficking law.

Beadle, who performs under the name BlackFire, was charged with drug trafficking, although he said the marijuana he had with him was for his personal use and was obtained legally in Oregon where medical marijuana was legalized in 1998. Oregon voters approved recreational use of marijuana in 2014. Prosecutors admitted there was no evidence to prove Beadle was trafficking in drugs other than the amount of marijuana, 2.89 pounds, and that it was concealed in his vehicle.

Chapman departed from giving Beadle the 10 to 40 years under the drug trafficking law, but he wouldn't reduce it to simple possession because he said the jury convicted Beadle under the drug trafficking law. Chapman said Beadle would have to serve the eight year sentence day-for-day since the law doesn't allow for parole or probation....

Patrick Beadle said he has a medical marijuana card from Oregon to treat chronic pain in both knees where cartilage has worn down from his years of playing college basketball. Marijuana use is also common among Rastafarians.

Beadle said he was traveling March 8, 2017, southbound on I-55 after entering Madison County and at about 10 a.m., he was pulled over on I-55 near Canton by a Madison County deputy for the alleged traffic violation of crossing over the fog line, the painted line on the side of a roadway. He disputes the deputy's assertion that he crossed over the fog line. He said his dreadlocks and out-of-state auto tag made him a target for racial profiling....

In the Beadle case, then-Deputy Joseph Mangino found no large sums of money, drug paraphernalia or weight measuring scale to substantiate the trafficking charge. "This is not the typical defendant you see. "He is not a drug dealer," said Randy Harris, who was Beadle's trial attorney.

This lengthy (pre-sentencing) article from another local paper provides a few more details and some context about this disconcerting case:

Beadle was southbound on I-55 and had crossed from Yazoo into Madison County. A few seconds later, a Madison County sheriff’s deputy pulled him over.  A search of Beadle’s car revealed 2.8 pounds of marijuana.

Following a trial in July, a jury took 25 minutes to find him guilty of charges that could land him in prison for up to 40 years without parole.  Beadle, who is African American, and his allies say the fact that he was pulled over is a clear case of racial profiling while law enforcement officials maintain that a traffic violation led to the stop....

In Madison County, drug dispositions between 2013 and 2017 -- that is, drug charges settled in those years -- neared 1,000, based on data provided by the Administrative Office of Courts. Of those total charges, only two people were found guilty by a jury as Beadle was, Mississippi Today found.  Out of all the drug dispositions, about three in five were faced by African Americans.

That discrepancy goes up when looking only at guilty pleas.  The majority of defendants pled guilty to over 600 charges in Madison County during that timeframe. About 66 percent of those individuals were black -- though black people make up only 38 percent of the county’s population -- while 32 percent were white.

October 19, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (5)

Saturday, October 13, 2018

Some prosecutors and some conservatives push back on momentum for federal criminal justice reforms

As highlighted via recent posts here and here, momentum seems to be picking up again for the passage of a version of the federal FIRST STEP Act that would reform federal prison practices and tweak federal sentencing rules.  Perhaps prompted by these realities, a new poll and new letter has emerged to push back on reform efforts. 

The poll comes from ORC International and was commissioned by the Foundation for Safeguarding Justice, a group which represents the National Association of Assistant U.S. Attorneys.  This press release reports on the heart of the poll:

A new survey of American adults, commissioned by the Foundation for Safeguarding Justice (FSJ), confirms that Americans overwhelmingly oppose sentencing and prison and “reforms” that would reduce federal criminal penalties for drug traffickers and allow the early release of prisoners to “home confinement.” Three out of four Americans surveyed (74 percent) said that they oppose proposals that reduce penalties for criminals involved in the trafficking of heroin, fentanyl, and similar drugs....

Public opposition to criminal leniency is deep across the American population and holds true regardless of race, gender, or party affiliation, the FSJ survey results (detailed below) show. The survey results represent an objective barometer of public opposition to criminal leniency for drug traffickers, in sharp contrast to the skewed results of a recent Kentucky poll touted by criminal leniency advocates....

The survey, conducted from September 13-16, 2018, interviewed 1,004 American adults, and was administered by ORC International, a nationwide polling firm. Full study results and methodology are available here.

Employing similar rhetoric and expressing similar concerns(and citing this poll), an assortment of conservative leaders have sent this letter to Prez Trump urging him to oppose FIRST STEP Act. Here is part of the letter:

Now, a leniency-industrial complex is urging you to support a bill that would reduce the sentences for federal drug traffickers, and allow large numbers of those same traffickers to “serve” their sentences outside prison in “home confinement.”

Mr. President, don’t do it. Trust your instincts. America seems, to many of us, to be plagued with different applications of justice. The public is losing faith in the rule of law and reforms are needed. But, here [we present] just four of many reasons why you should oppose this emerging new bill....

But this bill is not prison reform — it’s prison release. It’s not sentencing reform — it’s sentencing reductions. Contrary to what jailbreak supporters tell you, these policies are far from popular.  Proponents inadvertently acknowledge how unpopular their proposals are by disguising what they’re doing with buzzwords and abstract concepts.

Given how momentum for federal reform has built, slowly but surely, over much of 2018, I would be surprised if this new poll and letter significantly changes how important political players' are dancing with the FIRST STEP Act. But they both show that seemingly ever-growing consensus in support of federal reforms does not include everyone, and they also help highlight why even relatively modest reforms like the FIRST STEP Act can be a challenging political lift.

October 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Friday, October 12, 2018

Highlighting how constitutional problems with death penalty also apply to drug prohibitions

Over at Marijuana Moment, Kyle Jaeger in this post is quick to note interesting implications of key statements by the Washington Supreme Court in its big opinion yesterday striking down the state's death penalty as "unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner."  The post is titled "Successful Constitutional Case Against Death Penalty Works For War on Drugs, Too," and here are excerpts:

The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs.  Or at least not yet. Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”

If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone.  Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too.  For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants....

Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses.  Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans.  That’s in spite of the fact that rates of consumption are roughly equal among both groups...

The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.” “We recognize local, national, and international trends that disfavor capital punishment more broadly.  When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”

The parallel here couldn’t be more clear.  If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition.  A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years.  Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.

Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet.  While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking. 

The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.”  For all intents and purposes, drug prohibition too has failed to achieve similar goals.  Decades of drug war have not appreciably deterred consumption.  From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance.  The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”...

A last note from the Washington Supreme Court justices: “Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote.  “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”  Now swap “death penalty” with “drug prohibition” in that last quote.  Fits like a glove.

Prior related post:

October 12, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, October 11, 2018

Set your DVR for HBO's showing of documentary "The Sentence"

1468824_CC-CSR_NYLFF_TheSentence_v02_x1aThe folks at FAMM have been hosting advanced screenings of a new documentary about the impact of mandatory minimum sentencing, and in a few days HBO will make it possible for everyone to see "The Sentence."  Here is how HBO describes the film:

First-time filmmaker Rudy Valdez’s The Sentence tells the story of his sister Cindy Shank, a mother of three who received a 15-year mandatory sentence for conspiracy charges related to her deceased ex-boyfriend’s crimes. The documentary offers a searing look at the consequences of mandatory minimum sentencing and received critical acclaim when it premiered at the 2018 Sundance Film Festival.

The Sentence draws on hundreds of hours of footage shot by Valdez, who initially copes with his sister’s incarceration by filming the family moments Shank misses in prison. In the midst of Shank’s sentence, Valdez discovers his voice as a filmmaker and activist.

During the last months of the Obama administration’s clemency initiative, the family starts to fight for Shank’s release. The aching question at the core of this deeply personal portrait is whether their attempts to free Shank will succeed.

This lengthy Newsweek piece provides more details and context about the movie and the issues it raises. Here is an excerpt:

The Sentence, which won the Audience Award at Sundance and airs October 15 on HBO, tells Shank’s story. Filmmaker Rudy Valdez, her younger brother — at the time a pre-K assistant teacher — began making home videos of his nieces on a spare camera, as a way to record Shank’s children growing up. Before long, he began to see it as an opportunity to tell the story of mandatory minimum sentencing through “the people left behind,” says Valdez. His sister was eager to cooperate: “Tell everyone,” she told him. “Please, somebody see us.”...

Through Shank, Valdez exposes a broken justice system, one that began with the Reagan administration’s war on drugs. Mandatory minimum sentences for nonviolent cocaine and marijuana crimes were introduced as part of the Anti-Drug Abuse Act of 1986 — an attempt by Democrats to respond to the crack cocaine epidemic following the highly politicized, fatal overdose of college basketball player Len Bias. Mandatory sentences are lengthy for drug offenses; in 2016, the average carried 7.8 years — more than double the average sentence for a drug offense without a minimum. As a result, defendants are encouraged to consider accepting a plea bargain — the option Shank rejected — to receive a lesser sentence than the minimum.

In theory, plea bargains — ruled constitutional by the Supreme Court in 1970 — offer leniency to criminals who accept responsibility for their actions, allowing the accused and the state to avoid a time-consuming and expensive trial. In reality, defendants, even if they proclaim their innocence, are often pressured to plead guilty; go to trial, they are told, and you will likely get a much longer sentence. Such bargains have now become the norm: A 2017 New York Times investigation found that 98 percent of felony convictions occurred after a plea deal. And according to annual reports published by the Administrative Office on the U.S. Courts, total jury trials for U.S. criminal cases had dropped by roughly half between 1997, when there were 3,932 cases, and 2017, when there were 1,742.

The system “allows prosecutors to hold all of the cards,” says litigator Marjorie Peerce, co-chair of the National Association of Criminal Defense Lawyers Sentencing Committee. "Even if the government doesn’t have sufficient evidence, people will still plead guilty, for fear that they’ll be convicted and then sentenced with a mandatory minimum. People should not be penalized for exercising their constitutional right to trial.”

And of those penalized, the majority are black or Latino. A 2014 study found that black offenders were 75 percent more likely to face a charge carrying a mandatory minimum sentence than a white offender who committed the same crime. In 2016, Latinos represented the largest racial group in federal prison convicted of an offense that came with such a sentence. (Shank is Latina.)

October 11, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, October 09, 2018

Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1. The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1

I have not previously noted here the notable fear-mongering about Issue 1 that has emerged in recent months focused particularly on its effort to reduce drug possession offenses to misdemeanors and to allow prisoners to earn more time off their prison sentences.  In late August, Ohio Supreme Court Chief Justice Maureen O'Connor wrote a public letter warning of “catastrophic consequences" for Ohio if Issue 1 passes, and last week Gubernatorial candidate Mike DeWine began running a campaign ad involving local sheriffs stating "If you’re not scared [by Issue 1], you should be."  Lots of other judges and prosecutors and law enforcement official have used similar language their advocacy against Issue 1.

But, perhaps signalling just how strong the public supports significant drug sentencing and prison reform, the first big public poll on Issue 1 was released today and it shows the initiative with a nearly 18 point lead.  Here is a basic report on this poll:  

A criminal justice reform question on the Ohio statewide ballot has support from nearly 48 percent of likely voters while 30.5 percent oppose it and 21.7 percent aren’t sure how they’ll vote on the matter, according to a new poll released Tuesday by Baldwin Wallace University Community Research Institute....

The Baldwin Wallace poll, which was conducted Sept. 28 to Oct. 8, shows DeWine has 39.7 percent, Cordray 37.1 percent, Libertarian Travis Irvine has 4.3 percent, Ohio Green Party candidate Constance Gadell-Newton has 3.4 percent and 15.4 percent of voters are undecided. The poll has a margin of error of plus or minus 3.5 percent.

Notably, the full poll results indicate women voters favor Issue 1 by a 22 point margin (49 to 27) and Democrats favor Issue 1 by a 35 point margin (57 to 22). Assuming this poll numbers are solid, this results suggest to be that Issue 1 is quickly likely to pass if it turns out that women and/or Democrats end up being those especially motivated to show up to vote this November.

 Prior related posts:

UPDATE: Another (smaller) poll was released on October 10 concerning Issue 1, and it showed a much closer contest. This press article provides these details:

Ohio voters support a constitutional amendment to reduce penalties for some drug crimes and make other criminal justice reforms, according to a new poll released on the first day of early voting.

Issue 1 has the support of 43 percent of likely midterm voters surveyed in a Suffolk University/Enquirer poll; 38 percent oppose the measure. Nearly one in five said they had not yet decided how to vote....

The poll surveyed 500 likely Ohio voters by landline and cell phone from Oct. 4 to 8. The poll has a margin of error of 4.4 percentage points....

Issue 1 backers didn’t intend for the measure to become partisan but it has become a dividing line in the race for governor. Democrat Rich Cordray supports it as a way to reduce overcrowded prisons and funnel more money toward drug addiction treatment. His Republican opponent, Ohio Attorney General Mike DeWine, has said Issue 1 will allow drug dealers to avoid prison time and lead to more drug overdose deaths.

Among likely Cordray voters, 53 percent said they also support Issue 1 compared to only 33 percent of DeWine voters. 

October 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, October 04, 2018

"The Cure for America's Opioid Crisis? End the War on Drugs"

The title of this post is the title of this new paper now available via SSRN and authored by Christine Minhee and Steve Calandrillo.  Here is its abstract:

The War on Drugs.  What began as a battle waged on morals has in fact created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America’s opioid disaster. Last year alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined.  With this wave of mortalities came an accompanying tidal crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma.  To those attuned to the failures of the Iron Law of Prohibition, this litigation-fueled blame game functions merely as a Band-Aid over a deeply infected wound.

This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates.  We reveal that America’s fear of decriminalization has at its root the “chemical hook” fallacy — a holdover from Nancy Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health.  We argue that the legal and political acceptance of addiction as a public health issue — not the view that addiction is a moral failure to scourge — is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties, and restored faith in its own criminal justice system.

October 4, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, October 03, 2018

"Reclassified: State Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances"

The title of this post is the title of this notable new issue brief authored by Brian Elderbroom and Julia Durnan from the Urban Institute.  Here is how it gets started and part of its conclusion:

Recognizing the harm caused by felony convictions and the importance of targeting limited correctional resources more efficiently, state policymakers and voters have made key adjustments to their drug laws in recent years.  Beginning in 2014 with Proposition 47 in California, five states have reclassified all drug possession from a felony to a misdemeanor.  Following the California referendum, legislation in Utah (House Bill 348 in 2015), Connecticut (House Bill 7104 in 2015), and Alaska (Senate Bill 91 in 2016) passed with overwhelming bipartisan majorities, and Oklahoma voters in 2016 reclassified drug possession through a ballot initiative (State Question 780) with nearly 60 percent support.

The reforms that have been passed in recent years share three critical details: convictions for simple drug possession up to the third conviction are classified as misdemeanors, people convicted of drug possession are ineligible for state prison sentences, and these changes apply to virtually all controlled substances.  This brief explores the policy details of reclassification, the potential impact of the reforms, and lessons for other states looking to adopt similar changes to their drug laws....

Reclassifying drug possession from a felony to a misdemeanor can reduce the negative impacts imposed on people and communities by felony convictions, reduce imprisonment of people convicted of drug possession, and redirect limited resources to treatment and prevention without negatively impacting public safety.

The five states that have reclassified drug possession represent a wide range of political beliefs and reclassification has broad bipartisan support across the country.  Governors from the Republican, Democratic, and Independent parties have signed reclassification legislation, and voters approved reclassification at the ballot in states as diverse as California and Oklahoma.  State profiles in the appendix of this report provide more detail on these reforms, including the definition for drug possession, criminal penalties, projected or actual impacts, and reinvestment funding.

But reclassifying drug possession is only one step that states can take to reduce incarceration and reallocate prison spending to less costly and more effective options.  Lessons from the states that have reclassified drug possession, and research on the wide gap between state funding of behavioral health programs and treatment needs, suggest the need for a significant shift in how states deal with substance abuse and approach drug policy.

October 3, 2018 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, September 25, 2018

"Safe Injection Sites and the Federal 'Crack House' Statute"

Alex Kreit, who I am lucky to have time to hang out with this semester as he serves as the first Visiting Professor at The Ohio State University's new Drug Enforcement and Policy Center, has this new paper now posted on SSRN that has the same title as the title of this post.  Here its abstract:

Safe injection sites have become the next battlefield in the conflict between state and federal drug laws.  A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision.  They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths.  To date, however, no U.S. city or state has sanctioned a safe injection site.  Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs.  This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.

Efforts to start a safe injection site are currently underway in at least 13 cities and states.  Four cities — New York, Philadelphia, San Francisco, and Seattle — have gone so far as to announce plans to open an injection site.  There is just one small problem.  They appear to violate the federal “crack house” statute, which makes it a crime to maintain a drug involved premises.  The Department of Justice has not yet taken a formal position on safe injection sites.  But in a New York Times editorial, Deputy Attorney General Rod Rosenstein threatened that “cities and states should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action.”

Surprisingly, this looming conflict has gone almost entirely overlooked by legal academics.  Meanwhile, the public debate has assumed that the status of safe injection sites under federal law is clear.  In this article, I argue that assumption is wrong.  Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites.  Buried in the CSA is a statute that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.”  This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations.  But, I argue, the text of the immunity provision and the little caselaw that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.

September 25, 2018 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, September 23, 2018

Two exciting DEPC events this coming week

In separate prior posts here and here, I noted two substantive events scheduled this week involving the new OSU Drug Enforcement and Policy Center (which I help direct).  I am quite excited about both events, the first of which is in DC on Sept 25, the second of which is in Columbus on Sept 27 to 28.  Here are the titles of the events, descriptions, and links to registration pages:

 

"Laboratories of Democracy: Drug Policy In The United States" (September 25 in Washington, DC):

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event are available here and here.  

 

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis" (September 27-28 in Columbus, OH):

This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.

The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%.  In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329).  Ohio is losing nearly 12 citizens each day to a drug overdose.

Responses to the overdose crisis across the nation and within the state have been mixed.  There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips.  Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one.  Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose.  Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.

In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment.  In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.

More details about and registration for this event are available here and here.

September 23, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, September 21, 2018

Spotlighting ever-increasing overdose casualties amidst the last four decades of the war on drugs

F2.largeA new article in Science presents some notable data and observations about drug overdoses over the last 40 years in the US.  This article by six public health researchers is titled "Changing dynamics of the drug overdose epidemic in the United States from 1979 through 2016." Here is its full abstract:

INTRODUCTION

The epidemic of substance use disorders and drug overdose deaths is a growing public health crisis in the United States.  Every day, 174 people die from drug overdoses. Currently, opioids (including prescription opioids, heroin, and synthetic opioids such as fentanyl and its chemical analogs) are the leading cause of overdose deaths.  The overdose mortality data can reveal the complex and evolving dynamics of drug use in the United States.

RATIONALE

Reports on the U.S. drug overdose epidemic tend to focus on changes in yearly statistics. Improved understanding of the long-term dynamics of the overdose epidemic may aid in the development of more effective epidemic prevention and control strategies.  At present, there are no reliable methods to forecast the likely future course of the epidemic. We focused on deaths from overdoses as a relatively reliable metric of the epidemic because all deaths are required to be reported in all U.S. states and territories using the standardized International Classification of Diseases.  In an effort to understand the epidemic dynamics and perhaps predict its future course, we analyzed records of 599,255 deaths from 1979 through 2016 from the National Vital Statistics System where unintentional drug poisoning was identified as the main cause of death.  We examined the time course of the overall number of deaths; the contributions of individual drugs (prescription opioids, heroin, synthetic opioids like fentanyl, methadone, cocaine, methamphetamine) to the overall curve; changes in the populations most affected by each drug as measured by demographic factors of age, sex, race, and urbanicity; and changes in the geographic distribution of deaths due to each drug as measured by the county of residence of each decedent.

RESULTS

The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016.  This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years (left panel). By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories.  Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time.  Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40 (middle panel).  Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine.  Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States (right panel), whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers. The online manuscript provides many details of the patterns of mortality in these data.

CONCLUSION

The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979.  Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve.  This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process.  This process may continue along this path for several more years into the future. Paradoxically, there has been substantial variability with which specific drugs have become dominant in varying populations and geographic locales.  This variability all but negates the possibility of confident predictions about the future role of specific drugs.  Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple subepidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.

Critically, this article makes no effort to suggest any link between overdose data and modern criminal law enforcement efforts described as the "war on drugs." But I still find remarkable that these data in the article start with a relatively low overdose rate right before the Reagan Administration kicked the war on drugs into high gear. If preventing or reducing deaths from drug overdoses is one goal of the the drug war, this article spotlights just how poorly we have been doing on this particular front of the war over the last four decades.

Recent prior related post:

September 21, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, September 18, 2018

The latest argument for "overhauling the [DEA], or even getting rid of it entirely."

Leo Beletsky and Jeremiah Goulka has this new New York Times commentary under the headline "The Federal Agency That Fuels the Opioid Crisis: The Drug Enforcement Administration has proved itself incompetent for decades."  Here is how it starts and ends:

Every day, nearly 200 people across the country die from drug overdoses.  Opioids have been the primary driver of this calamity: first as prescription painkillers, then heroin and, more recently, illicitly manufactured fentanyl.  The death toll has risen steadily over the past two decades.

The Drug Enforcement Administration, the agency that most directly oversees access to opioids, deserves much of the blame for these deaths.  Because of its incompetence, the opioid crisis has gone from bad to worse.  The solution: overhauling the agency, or even getting rid of it entirely.

The problem begins with poor design.  A brainchild of Richard Nixon’s “war on drugs,” the agency sought to cut off supplies of drugs on the black market, here and abroad. But in passing the Controlled Substances Act of 1970, Congress also gave the agency broad authority over how prescription opioids and other controlled substances were classified, produced and distributed.  The agency was supposed to curb problematic drug use, but failed to do so because its tactics were never informed by public health or addiction science.

Despite the investment of hundreds of billions of taxpayer dollars and the earnest efforts of thousands of employees, the D.E.A.’s track record is abysmal. The agency has been unable to balance legitimate access to and control of prescription drugs.  The widespread over-reliance on opioids, along with benzodiazepines, amphetamines and other scheduled medications, has created a booming black market.

The agency’s enforcement strategies, and the support it has lent to local and state police departments, have also fueled abusive police tactics including dangerous no-knock-raids and ethnic profiling of drivers.  It has eroded civil liberties through the expansion of warrantless surveillance, and overseen arbitrary seizures of billions of dollars of private property without any clear connection to drug-related crimes.  These actions have disproportionately targeted people of color, contributing to disparities in mass incarceration, confiscated property, and collective trauma....

We urgently need to rethink how our nation regulates drugs.  What should our goals be?  How can we design institutions and performance metrics to achieve them?

The answers lie at the local and state levels.  In Rhode Island, opioid overdoses are declining because people behind bars have access to effective treatment. Massachusetts has deployed drop-in centers offering treatment, naloxone and other services.  San Francisco and Seattle are planning to open safe consumption spaces which show tremendous promise as a tool to reduce overdose deaths and other drug-related harm.  But the D.E.A. and its institutional parent, the Justice Department, stand in the way of some of these experiments.

We ought to reinvent the Drug Enforcement Administration. Considering its lack of public health and health care orientation, the agency’s regulatory authority over the pharmaceutical supply could be transferred to a strengthened and independent Food and Drug Administration, while the regulation of medical and pharmacy practice can be ceded to the states.  Parts of the D.E.A.’s law enforcement mandate should be transferred to the F.B.I., delegated back to the local or state, or eliminated.  A significant portion of the D.E.A.’s budget should be reinvested in lifesaving measures like access to high-quality treatment.

The Drug Enforcement Administration has had over 40 years to win the war on drugs.  Instead its tactics have fueled the opioid crisis.  To finally make a dent in this national emergency, we need to rethink the agency from the bottom up.

Perhaps unsurprisingly, the suggestion to consider abolishing DEA is not novel. A quick google search turned up these other recent like-minded commentary (among others):

September 18, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis"

The title of this post is the title of this exciting event taking place at The Ohio State University Moritz College of Law in Columbus, Ohio at the end of next week. OSU's newly established Drug Enforcement and Policy Center (DEPC) is co-hosting this two-day gathering, and here is the conference description from the full conference agenda:

This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.

The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%.  In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329).  Ohio is losing nearly 12 citizens each day to a drug overdose.

Responses to the overdose crisis across the nation and within the state have been mixed.  There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips.  Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one.  Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose.  Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.

In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment.  In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.

More details about and registration for this event are available here and here.

September 18, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, September 14, 2018

"Laboratories of Democracy: Drug Policy In The United States"

The title of this post is the title of this exciting event taking place in Washington DC later this month that I have had the honor of helping to plan.  Here is the event's description:

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event (which will include a panel discussion on the opioid crisis and a panel discussion on marijuana reform) are available here and here.  

September 14, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider

A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post.  There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:

Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law.  He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary.  In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch.  However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered.  A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.

Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction.  We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.

Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:

I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification.  The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint.  At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests.  See Gonzales v. Raich, 545 U.S. 1, 29 (2005).  But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.  The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.”  Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.

One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920).  The jury’s power to nullify has ancient roots, dating back to pre-colonial England.  See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)).  It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel.  See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994).  From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).

Cross-posted at Marijuana Law, Policy and Reform.

September 14, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, September 13, 2018

Various federal, state and local perspectives on the latest fronts in the latest battles of the never-ending drug war

As noted in this prior post, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of programming and resources already assembled on the interesting and intricate drug sentencing and prison reform initiative headed for the November 2018 ballot here in Ohio called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment" or just Issue 1.  In particular today, Thursday, September 13 at 12noon, starts a series five public panels about Issue 1 under the title Ballot Insights (and DEPC has also created a Resources Page for Issue 1 and Commentary Page on Issue 1).  I find Issue 1 fascinating because the players involved and perspectives shared on drug enforcement and drug policy amidst a state-wide direct democracy campaign is already proving remarkable (e.g., Ohio judges have been very vocal so far fiercely opposing Issue 1's drug sentencing reforms). 

Meanwhile, this week also brought an interesting local perspective (mostly from Ohio) on another front of the drug war in the form of this very lengthy piece by Jack Shuler in The New Republic titled "Overdose and Punishment." The sub title of the piece highlights its themes: "When Chad Baker died from a lethal combination of cocaine and heroin, prosecutors charged Tommy Kosto, his friend and fellow drug user, with killing him — a tactic from the Reagan-era war on drugs that is gaining popularity around the country and making today's opioid crisis even worse."

Providing yet another perspective on these matters is Attorney General Jeff Sessions, who yesterday delivered this speech to the National Narcotics Officers' Association’s Coalition Drug Enforcement Forum.  Those who regularly read the AG's speeches will find a lot in this latest speech familiar, but I still though it useful to reprint some of his discussion of the drug war "surge" now on-going at the federal level:

[I]n the districts where drug deaths are the highest, we are now vigorously prosecuting synthetic opioid trafficking cases, even when the amount is small. It’s called Operation Synthetic Opioid Surge — or S.O.S.

We are in a desperate fight to curtail the availability and spread of this killer drug. Synthetic opioids are so strong that there is no such thing as a small case. Three milligrams of fentanyl can be fatal. That’s equivalent to a pinch of salt. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.

In Manatee County, Florida, in partnership with the Sheriff, we tried this strategy and it worked. This past January, they had half the number of overdose deaths as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdose calls a day to an average of one a day. Those are promising results. We want to replicate those results in the places that have been hardest hit.

And so I have also sent 10 more prosecutors to help implement this strategy in ten districts where drug deaths are especially high. And that is in addition to the 12 prosecutors I sent to prosecute opioid fraud in drug “hot spot districts.” To help them do that, I have begun a new data analytics program at the Department called the Opioid Fraud and Abuse Detection Unit to use data to find opioid-related health care fraud....

I have also sent more than 300 new federal prosecutors to our U.S. Attorneys offices across America. This is the largest surge in prosecutors in decades. You can be sure drugs, gangs, and related violence will be a priority for them.

September 13, 2018 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (2)

Monday, September 10, 2018

Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1

Depc_testA few months ago, I flagged here the interesting and intricate drug sentencing and prison reform initiative headed for the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just a month away and Election Day 2018 not much more than 50 days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of Issue 1 programming about to begin and has a lot of resources already assembled on its website.

This Thursday, September 13 at 12noon, starts a series five public panels under the title Ballot Insights.  Registration for these panels is available at this link, where you can also find more details on scheduled speakers and on which aspects of the Issue 1 will be the focus for particular panels (e.g., a first panel in October is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming; a second panel in October looks at how to ensure any increased funding for drug treatment is utilized effectively). 

I have the pleasure of moderating the first Issue 1 panel this coming Thursday, which is titled simply "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment: Step in the Right Direction."  This panel will include a leading proponent of Issue 1 (Steven JohnsonGrove of the Ohio Justice & Policy Center), a leading opponent of Issue 1 (Louis Tobin of the Ohio Prosecuting Attorneys Association), and a leading Ohio criminal justice reform expert (Daniel Dew of The Buckeye Institute).  The bios of the presenters are detailed at this link.

In addition to all the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. (A pair of public health scholars submitted this first commentary for publication on the DEPC site.)

 Prior related posts:

September 10, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 03, 2018

Noticing latest USSC data on retroactive impact of "drugs -2" guideline amendment

Just before the long weekend, I saw that the US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated August 2018, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through July 31, 2018, and for which court documentation was received, coded,and edited at the Commission by August 23, 2018."

The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782 (the so-called "drugs -2" guideline amendment) fully retroactive, now 31,381 federal prisoners have had their federal drug prison sentences reduced by an average of 25 month.  (Notably, this federal register document reports that the "average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017."   This "average cost" number is a very imperfect proxy for the actual prison cost savings from reduced sentences resulting from the retroactive drugs-2 guideline amendment, but it suggests federal taxpayers have saved billions in prison costs thanks to drugs -2 retroactivity.)  

Among other impacts, the the drugs -2 amendment and its retroactivity are likely key contributors to a continued decline in the federal prison population.  The amendment was in 2014, and its  retroactivity became effective in November 2015.  In Fiscal Year 2014, the federal prison population clocked in at 214,1495, and in Fiscal Year 2015 the federal prison population was down to 205,723.  By Fiscal Year 2016, the federal prison population dropped all the way down to 192,170; by Fiscal Year 2017, the federal prison population was down further to 185,617.  As as of August 30, 2018, the federal prison population was at 182,797.  (All theses data come from this Bureau of Prisons webpage.)   I keep expecting and waiting for the policies and practices of Attorney General Jeff Sessions to turn around this recent steady decline in the federal prison population, but is seems the "drugs -2" guideline amendment, its retroactivity and other forces have keep a downward pressure on the federal prison population for the time being.

September 3, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (2)

Tuesday, August 28, 2018

Deputy AG Rosenstein suggests more federal prosecutions are key to battling opioid crisis ... but that really hasn't been working

Deputy Attorney General Rod Rosenstein has this notable New York Times opinion piece under the headlined "Fight Drug Abuse, Don’t Subsidize It."  Here are is how it starts and ends:

Almost 64,000 Americans died of drug overdoses in 2016, a shocking 54 percent increase since 2012.  Dangerous opioids such as heroin and fentanyl contributed to two-thirds of the deaths.  This killer knows no geographic, socioeconomic or age limits.  It strikes city dwellers and Midwestern farmers, Hollywood celebrities and homeless veterans, grandparents and teenagers.

Remarkably, law enforcement efforts actually declined while deaths were on the rise.  Federal drug prosecutions fell by 23 percent from 2011 to 2016, and the median drug sentence doled out to drug traffickers decreased by 20 percent from 2009 to 2016.  The Trump administration is working to reverse those trends.  Prosecutions of drug traffickers are on the rise, and the surge in overdose deaths is slowing.

Unfortunately, some cities and counties are considering sponsoring centers where drug users can abuse dangerous illegal drugs with government help.  Advocates euphemistically call them “safe injection sites,” but they are very dangerous and would only make the opioid crisis worse.

These centers would be modeled on those operating in Canada and some European countries. They invite visitors to use heroin, fentanyl and other deadly drugs without fear of arrest.  The policy is “B.Y.O.D.” — bring your own drugs — but staff members help people abuse drugs by providing needles and stand ready to resuscitate addicts who overdose....

That is not the way to end the opioid crisis. Americans struggling with addiction need treatment and reduced access to deadly drugs.  They do not need a taxpayer-sponsored haven to shoot up.

To end the drug crisis, we should educate everyone about the dangers of opioid drugs, help drug users get treatment and aggressively prosecute criminals who supply the deadly poison.  Under the leadership of President Trump and Attorney General Jeff Sessions, the Department of Justice is delivering results.  Many federal, state and local agencies are working with us to combat opioid addiction.  Cities and counties should join us and fight drug abuse, not subsidize it.

I am disinclined to take up here the debate over safe injection sites, which could merit a volume.  I will be content here to point to this recent report from Europe indicating "evaluation studies have found an overall positive impact on the communities where these facilities are located," as well as this new meta-research indicating that "Medically Supervised Injection Centres ... had a significant favourable result in relation to drug-related crime and a significant unfavourable result in relation to problematic heroin use or injection." At Vox, German Lopez covers these research matters in this recent article headlined "Safe injection sites were thought to reduce drug overdoses. The research isn’t so clear."

I am inclined to take issue with how DAG Rosenstein seems to make a case for more federal prosecutions to address overdose deaths and the opioid crisis.  Though he laments that "federal drug prosecutions fell by 23 percent from 2011 to 2016, and the median drug sentence doled out to drug traffickers decreased by 20 percent from 2009 to 2016," DAG Rosenstein leaves out the fact that declines in marijuana and crack prosecutions and the impact of fairer crack guidelines account for these realities (see USSC quick facts data on marijuana and crack).  Meanwhile, as this USSC report explains, in "fiscal year 2016, there were 2,763 heroin trafficking offenders [sentenced in federal court, meaning the] number of heroin offenders has increased by 29.4% since fiscal year 2012."  In other words, though overall federal drug prosecutions have gone down through 2016, federal prosecution of heroin has been going up significantly this period when overdose deaths from dangerous opioids were also surging. 

In addition, there is a basis to question the statement that prosecutions of drug traffickers are now on the rise, as this data from TRAC suggests that FY 2017 and 2018 has seen record low numbers of federal drug trafficking prosecutions.  And to assert that the "surge in overdose deaths is slowing" is not all that reassuring given the new preliminary report of 72,000 overdose deaths in 2017 compared to 64,000 in 2016 (though I suppose it is correct to say the "surge" is slowing given that this 8,000-person increase in deaths is less than the 11,000 increase from 2015 to 2016).  Especially at a time of crisis, I sincerely want to believe that, as DAG Rosenstein asserts, the "Department of Justice is delivering results."  But the data I can find does not seem to support this claim.

August 28, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences | Permalink | Comments (2)

Monday, August 20, 2018

"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"

The title of this post is the title of this notable and timely new paper authored by Leo Beletsky and now available via SSRN.  Here is its abstract:

Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse.  Despite the advent of a supposed “public health” approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow.  Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.

This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities.  By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis.  Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects.  Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as “dealers.”

Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events.  This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America’s history.

UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’."

August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, August 15, 2018

Interesting commutation developments in wake of initiative reform in Oklahoma

This local story, headlined "49 Oklahoma inmates imprisoned for drug crimes asking for commutations; 49 asking state to consider commutations in light of State Question 780," reports on an interesting clemency echo in the wake of a notable ballot initiative passed in Oklahoma in 2016. Here are the details:

Some state inmates serving 10 years to life in prison for what has been described as “low-level” drug crimes have applied for commutations thanks to the help of advocates and law students.

The 49 inmates and those backing their commutation applications are citing recent changes in state law — and Oklahoma’s highest incarceration rate in the nation — as the reason why. “A lot of these are 20-, sometimes 30-year sentences on a crime that if charged now would be a misdemeanor,” said Corbin Brewster, Tulsa County’s chief public defender.

Brewster’s office assisted Oklahomans for Criminal Justice Reform with creating the list of inmates. The coalition of business and community leaders, law enforcement experts and advocates across the state is led by former state House Speaker Kris Steele.

The state Pardon and Parole Board will take the up the first batch of 23 commutation requests — all female inmates — on Monday in Oklahoma City. The rest are scheduled to be considered next month.

The requests for commuted sentences, if recommended by the parole board and approved by the governor, would only reduce the length of the prison terms. Some sentences could be modified to “time served,” but the convictions would remain on the inmate’s record.

Push for commutations is spurred by the passage of State Question 780, which starting July 1, 2017, made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. Steele led the call for the state question, which was approved in November 2016 by 58 percent of Oklahoma voters.

Eight law school students, working as summer interns for Oklahomans for Criminal Justice Reform, helped choose applicants and interviewed them, said Stephen Galoob, associate professor at the University of Tulsa Law School. Galoob said the effort is aimed at “just making the system work.”

“These are all cases and these are all stories that are really powerful,” he said. “And a lot of what the students are doing is just telling the stories of the people who are in prison for crimes that the people of Oklahoma don’t really think we should be locking people up for.”...

The parole board uses a two-stage process to consider commutations. During the first stage, the board reviews the application before considering whether to pass the request to a second, more thorough review stage. At least a majority vote of the board is needed to forward the commutation request to the governor for final consideration.

The parole board considered 477 commutation requests in fiscal 2018, which ended June 30, said DeLynn Fudge, the agency’s executive director.  The board passed 19 of the requests to the second stage of its review process, of which 10 were forwarded to the governor with a recommendation that they be approved, Fudge said. 

Especially in light of the historical numbers reported in this article, it is especially interesting and exciting to see this follow-up article headlined "Nearly two dozen cases involved in 'commutation campaign' advance to second stage of consideration":

The Oklahoma Pardon and Parole Board voted Monday to advance a group of nearly two dozen people who are being assisted by a commutation campaign to a second stage of review.

August 15, 2018 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 14, 2018

High-profile drug arrest of billionaire addict spotlights issues of what is "trafficking" and who is a "victim" and "recidivist"

A high-profile drug arrest in Las Vegas late last week presents a high-profile setting to explore all of the legal uncertainty that necessarily surrounds the modern drug war.  This CBS/AP story, headlined "Tech billionaire Henry Nicholas facing drug trafficking counts in Vegas," provides some of the basics:

Tech billionaire and advocate of crime victims Henry T. Nicholas III is facing drug counts after being arrested along with a woman Tuesday at a Las Vegas Strip casino-resort. Nicholas was arrested on suspicion of trafficking heroin, cocaine, meth and ecstasy, Las Vegas police officer Larry Hadfield said Thursday. He added police responded to the casino-resort following a report from security, which had found contraband in a room [this local piece provides more details of the search and seizures]....

The woman arrested with Nicholas was identified as Ashley Fargo, reportedly the ex-wife of an heir to the Wells Fargo fortune. Hadfield said she faces the same counts as Nicholas. Court records show she has also been released on her own recognizance. Records for the pair show a court hearing scheduled for September.

Attorney and legal analyst Alex Kazarian tells CBS Los Angeles it's likely Nicholas didn't intend to traffic drugs -- but his intent may not matter. "It sounds like his biggest crime is being an addict," Kazarian said. "He's a billionaire. He's not a person that's trying to make money off of drugs. He's a person that's trying to make friends off of drugs. Unfortunateley, the way the laws are written, if you're giving away drugs or if you're selling drugs, you're trafficking."

Nicholas co-founded high-tech chipmaker Broadcom Corp. in 1991 and resigned as president and CEO in 2003. In 2008, he was indicted on narcotics and securities fraud charges. The charges in the securities case were dismissed in 2009 and the narcotics case in 2010.

The billionaire is an advocate for crime victims and has bankrolled ballot measures in the U.S. to guarantee them and their family members some rights. The so-called "Marsy's Law" victims' bill of rights is named after Nicholas' sister, Marsalee "Marsy" Nicholas, a California college student who was stalked and killed in 1983 by an ex-boyfriend.

Five states - California, Ohio, Illinois, North Dakota and South Dakota - have a Marsy's Law on their books.... In Nevada, Marsy's Law will appear on the ballot in November as a legislatively referred constitutional amendment, after the measure was approved during the 2015 and 2017 legislative sessions, as required by law. Nevada Attorney General Adam Laxalt, Clark County Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson have previously endorsed the measure.

As people who work in the drug policy and reform space know well, the dividing line between being a "drug possessor" and a "drug trafficker" can often be a thin one and this story seems to effectively highlight this reality. Moreover, given the extraordinary work that Nicholas has done to promote victim involvement in the criminal justice system, this case provides an interesting setting to explore who can and should be able to claim to be a victim of a "drug trafficker."  In addition, here are some more details about Nicholas's prior involvement with drug charges from this local piece:

In a 2008 federal indictment, Nicholas was accused of possessing and conspiring to distribute drugs, including ecstasy, cocaine and methamphetamine. According to federal court records, he was accused of distributing and using drugs on a private flight between Orange County and Las Vegas, “causing marijuana smoke and fumes to enter the cockpit and requiring the pilot flying the plane to put on an oxygen mask.”  The charges against him were dropped in 2010, court records show.

Because charges were drop in the prior case, Nicholas would not qualify as a repeat drug offender subject to recidivist sentencing enhancements. But I cannot help but wonder why and how prior federal drug distribution charges were dropped against him, while also thinking somebody else might get labelled a serious drug offender with this kind of history without Nicholas's legal good fortunes so far.

August 14, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Victims' Rights At Sentencing | Permalink | Comments (0)

Thursday, July 26, 2018

Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative

A couple of week ago, I flagged here an interesting and intricate drug sentencing initiative headed for the November 2018 ballot here in Ohio.  As of earlier this week, the "Neighborhood Safety, Drug Treatment and Rehabilitation" amendment (in full at this link) officially qualified for the fall ballot as Issue 1.  And, as reported in this local article headlined "Cordray, Holder support diversion of drug offenders from prison," this proposal is already receiving high-profile support:

Ohio no longer can afford — both in terms of money and lives — to imprison low-level drug offenders who instead should be diverted to addiction treatment, says Democratic gubernatorial candidate Richard Cordray.  “We need to be tough on violent criminals, but mass incarceration of drug addicts who should be in treatment is unwise, it wastes too much money and it wastes a lot of lives in Ohio,” Cordray said.

The former Ohio attorney general was joined by former U.S. Attorney General Eric Holder to discuss criminal justice reform at a Thursday campaign event at the Downtown YWCA.  The Democrat who served under former President Barack Obama spoke out against “warehousing” minor criminal offenders, saying governors and state attorneys general must steer new policy courses.

Holder chided Republican President Donald Trump and his U.S. attorney, Jeff Sessions, for “going back to the bad, old days of unthinking (criminal) sentences” for non-violent offenders who deserve another chance.

Cordray underlined his strong support for state Issue 1 on the Nov. 6 ballot that would reclassify low-level felony drug use and possession charges to first-degree misdemeanors punishable by only six months in jail, with the goal of diverting offenders to drug treatment.  It also would potentially allow the release of all current such offenders from state prisons.  “I believe It will set the way toward a policy of being smart on crime in the future, smart on how we use taxpayers’ dollars, smart on how we build people’s potential to be productive citizens in our society,” Cordray said.

Holder and Cordray agreed such a sentencing reform would be neither easier nor cheap in the short run, but provide savings and resuscitate more Ohioans from drugs and failed lives in the long run.

Comment is being sought from the gubernatorial campaign of Republican Mike DeWine, Ohio’s attorney general, whether he supports or opposes the statewide ballot issue.

The administration of Republican Gov. John Kasich is spending up to $58 million over two years to divert a flood of non-violent felony offenders, many convicted of drug possession amid the opioid crisis, from state prisons to local programs.  Many counties, however, are not accepting the money, saying it would not cover all local costs. More than a fourth of state inmates are non-violent drug offenders....

A Republican National Committee spokeswoman lambasted the pair.  “Richard Cordray’s decision to fund-raise with disgraced former Attorney General Eric Holder proves just how swampy and out-of-touch he is with Ohioans.  You can tell a lot about a person based on the company they keep, and if Cordray chooses Eric Holder as an ally, then Ohioans ought to be wary and steer clear of Richard Cordray,” said Mandi Merritt.

Prior related post:

July 26, 2018 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, July 24, 2018

Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?

The question in the title of this post is prompted by this new Marshall Project piece by Joseph Neff headlined "Punished for Crimes Not Proven: Brett Kavanaugh and the case of Gregory 'Boy Boy' Bell."  Here is how the piece starts and ends:

After a nine-month trial, a jury convicted Gregory "Boy Boy" Bell of selling crack cocaine, three sales totaling five grams and carrying a sentence in the five-year range. More importantly for Bell, the jury acquitted him of 10 serious charges, including a trafficking conspiracy and a racketeering conspiracy that would have meant decades in prison.

At sentencing, the judge ruled that Bell had engaged in the exact same crack cocaine conspiracies that the jury had rejected. The five grams of crack became 1,500 grams, and the judge sentenced Bell to 16 years, not the expected five.

Critics object that the use of “acquitted conduct” to justify longer sentences empowers prosecutors and judges to ignore the judgment of the jury, to base sentences on facts rebuffed by the citizens in the jury box.

Those critics include one of Bell’s jurors and Court of Appeals Judge Brett Kavanaugh, the current nominee to the U.S. Supreme Court. “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial,” Kavanaugh wrote about Bell’s case in 2015 [available here].

Kavanaugh noted that he and his colleagues on the appeals court were powerless to overturn the sentence.  They are required to follow the rulings of the U.S. Supreme Court, which has allowed acquitted conduct to be a factor in sentencing.  In the meantime, Kavanaugh reminded trial judges that, when asked to use acquitted conduct to increase sentences, they can just say no....

Acquitted conduct and its legal siblings — dismissed conduct and uncharged conduct — are contentious subjects in the arcane world of federal sentencing law.  The tension arises from different standards of proof used at trial.  Juries convict after finding proof beyond a reasonable doubt.  At sentencing, judges use the preponderance of the evidence, a standard requiring more than 50 percent of the evidence to prove something, like the tip of a scale.

The standard makes sense in discretionary sentences, used in varying degrees in all state and federal courts.  Legislatures set ranges for criminal sentences: probation to 20 years in prison, for example, or, five years to life.  In fashioning a precise sentence within a wide range, a judge weighs aggravating and mitigating factors such as criminal record, education, victim testimony, family life, military service, abuse or neglect as a child and work history.

Dating back at least to 1949, the U.S. Supreme Court has allowed judges to use uncharged conduct to increase sentences. In later rulings, the Supreme Court explicitly allowed federal judges to make findings of fact that include acquitted conduct at sentencing. But the law is muddled. The Supreme Court began to limit the effect of uncharged and acquitted conduct in 2000, but more recent decisions have undercut those cases.  In Kavanaugh’s words, the Supreme Court lurched toward sentencing reform only to back away.

The court has since avoided the issue. In 2014, the Supreme Court declined to hear the cases of three Congress Park co-defendants: Joseph “JoJo” Jones, Desmond “Dazz” Thurston, and Antwuan “Big Ant” Ball.  Each had his sentence tripled or more based on allegations the jury found unpersuasive.  Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg wanted to hear those cases.  In a dissent, they said the time had come to confront acquitted conduct: “This has gone on long enough.”  It takes four justices to accept a case.

If Kavanaugh tips the balance,it will be too late for Gregory “Boy Boy” Bell, who has been locked up since his arrest in 2005.  He is scheduled to be released on Sept. 4.

In this post earlier this month, I asked "Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?".  In that post, I highlighted Justice Kennedy's historic hostility to Apprendi and its Sixth Amendment progeny.  The Bell case is properly considered exhibit A to support the possibility that a possible Justice Kavanaugh will have a more rights-protective approach to these issues.  (Then again, Judge Kavanaugh has been heard to compliment the late Chief Justice Rehnquist, who authored the Watts opinion blessing acquitted conduct guideline enhancement in the pre-Apprendi world.)

That all said, it is worth remembering that Chief Justice Roberts and Justices Kagan and Sotomayor also refused to vote to grant cert in the Ball case in 2014 (details here), even though all three had voted for extensions of Apprendi rights in prior cases like Southern Union.  Especially with Justice Kennedy gone and thus only Justices Breyer and Alito being on record as being eager to allow judges to enhance sentences without significant constitutional restraint, it is certainly possible to imagine the newer Justices (Gorsuch and Kavanaugh if conformed) convincing the likes of Roberts and Kagan and Sotomayor to be willing to take up this matter.  I sure hope so, but I will not be holding my breath.

A few prior posts with thoughts on a post-Justice Kennedy Court:

Previous related posts on the DC cases discussed above:

July 24, 2018 in Blakely Commentary and News, Booker and Fanfan Commentary, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, July 23, 2018

A father's perspective on clemency and its potential (and limits)

A helpful reader alerted me to this interesting new commentary authored by John Owen, headlined "A father's plea for mercy for his imprisoned daughter."  Here are excerpts:

President Donald Trump’s recent pardons and commutations have spotlighted, once again, the importance of executive clemency to soften the harshness of our criminal justice system.  President Abraham Lincoln was famous for preferring mercy over “strict justice.”  In fact, he used his clemency power so liberally, his attorney general had to assign someone to shadow him to record the names of all those he pardoned or commuted, according to author Margaret Love....

That’s how executive clemency is supposed to work.  It operates outside our rule of law, but it also respects it. It is the personal prerogative of the leader and so, inevitably, can be arbitrary.  It is also a message to our branches of government and to our society to mitigate our desire for vengeance with compassion....

I have spent the past nine years grieving the almost 20-year sentence imposed on my daughter, Mary Anne Locke, for her low-level, non-violent role in a meth distribution conspiracy.  She was ordered to report to federal prison in 2009, six weeks after she had a Cesarean section.  Along with her baby, she left behind a loving husband and two other children.

Mary Anne did not have an easy life, and I accept the role I played in that.... In her early teens, Mary Anne found drugs and men who were themselves substance abusers and also physically violent....  She relapsed at age 28, triggered by personal tumult, as well as health problems for which she was prescribed amphetamines. It was around this time that she became involved with the head of the meth conspiracy charged in her federal case. He gave her an unlimited supply of meth and, in return, embroiled her in a supportive capacity in his drug distribution activities.

Pregnant with her second child in 2007, Mary Anne again disavowed the drug lifestyle.  The indictment in her federal case was handed down in 2008, when she was pregnant with her third child, after two years of sobriety and a wonderful marriage with her then husband, who had no connection with her drug activities. She cooperated fully upon arrest, at considerable risk to herself.

Imagine our family’s devastation when she was sentenced to 234 months, or 19.5 years.  Murderers get less time. Although nationally, statistics indicate that defendants with her characteristics would receive an almost 50 percent reduction of their applicable guideline, the judge gave her just a 20 percent reduction.  Mary Anne was not the kingpin or organizer. She never engaged in or threatened any violence.  She played a supportive role to fund her addiction.  She had never spent more than a night in custody.  She is precisely the kind of low-level player deserving of leniency.

Rather, her sentence was driven by the charging decisions of the prosecutors she faced and the particular sentencing philosophy of her judge.  This judge has been critiqued as one of the harshest in the country.  In fact, she is the only sitting judge to have been subject to a commutation by Trump (the 27-year sentence of Sholom Rubashkin).  Moreover, today, not only would another judge give Mary Anne an almost 50 percent reduction of her applicable guideline, Mary Anne’s sentencing guideline would be substantially lower....

Needless to say, Mary Anne has served the top end of that guideline.  And she has done so with distinction.  She has been an exemplary prisoner — discipline-free, who has worked and studied consistently throughout her sentence, completing her final year in a three-year college program in office administration.  Don’t get me wrong.  Mary Anne broke the law and deserved punishment.  But her lengthy sentence violates any basic notions of justice and proportionality.  She deserves mercy.

She applied for clemency before President Barack Obama, and has again applied before President Trump.  She was represented in both applications by the Clemency Project at the University of Minnesota Law School.  I am a lifelong Republican. I am, however, forever grateful to Obama for bringing executive clemency back to its roots — to address systemic unfairness, while also acknowledging the humanity of each person behind bars.  I am also buoyed by Trump’s recent clemency decisions, and his pronouncements that he plans to use it even more expansively.

But nothing beats a legislative solution that grants my daughter — and the thousands of prisoners like her — a “second look” at the severity and fairness of their sentence, in a public proceeding, with a judge and an advocate.

July 23, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

"The Budgetary Effects of Ending Drug Prohibition"

The title of this post is the title of this notable new paper authored by Jeffrey Miron published by the Cato Institute. Here is how it starts:

In the past several years, the national movement to end drug prohibition has accelerated.  Nine states and Washington, DC, have legalized recreational marijuana, with at least three more states (Connecticut, Michigan, and Ohio) likely to vote on legalization by the end of 2018.  Dozens of others have decriminalized the substance or permitted it for medicinal use.  Moreover, amid the nation’s ongoing opioid crisis, some advocates and politicians are calling to decriminalize drugs more broadly and rethink our approach to drug enforcement.

Drug legalization affects various social outcomes.  In the debate over marijuana legalization, academics and the media tend to focus on how legalization affects public health and criminal justice outcomes.  But policymakers and scholars should also consider the fiscal effects of drug liberalization.  Legalization can reduce government spending, which saves resources for other uses, and it generates tax revenue that transfers income from drug producers and consumers to public coffers.

Drawing on the most recent available data, this bulletin estimates the fiscal windfall that would be achieved through drug legalization.  All told, drug legalization could generate up to $106.7 billion in annual budgetary gains for federal, state, and local governments.  Those gains would come from two primary sources: decreases in drug enforcement spending and increases in tax revenue.  This bulletin estimates that state and local governments spend $29 billion on drug prohibition annually, while the federal government spends an additional $18 billion.  Meanwhile, full drug legalization would yield $19 billion in state and local tax revenue and $39 billion in federal tax revenue.

In addition, this bulletin briefly examines the budgetary effects of state marijuana legalizations that have already taken place in Colorado, Oregon, and Washington.  This study finds that, so far, legalization in those states has generated more tax revenue than previously forecast but generated essentially no reductions in criminal justice expenditure. The bulletin offers possible explanations for those finding.

I cannot help but being a bit suspicious of parts of this paper because the very first sentence is a little off:  it is not at all "likely" that Connecticut or Ohio will have marijuana legalization votes in 2018.  Michigan will be having an initiative vote in November, and it is possible that Missouri, North Dakota and Oklahoma voters all could also have a chance to vote for full legalization, too.   This state-vote accounting snafu notwithstanding, the other forms of accounting in this paper still seem to me worth checking out, and the paper also seem to provide a good excuse to link to a few related recent posts from Marijuana Law, Policy and Reform:

July 23, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Thursday, July 12, 2018

AG Jeff Sessions "surges" federal war against synthetic opioids in select counties

This new press release from the US Justice Department, headed "Attorney General Jeff Sessions Announces the Formation of Operation Synthetic Opioid Surge (S.O.S.)," reports on a notable new federal front in the modern war on drugs. Here are the details (with my emphasis added):

Attorney General Jeff Sessions today announced Operation Synthetic Opioid Surge (S.O.S.), a new program that seeks to reduce the supply of deadly synthetic opioids in high impact areas and to identify wholesale distribution networks and international and domestic suppliers.

As part of Operation S.O.S., the Department will launch an enforcement surge in ten districts with some of the highest drug overdose death rates. Each participating United States Attorney’s Office (USAO) will choose a specific county and prosecute every readily provable case involving the distribution of fentanyl, fentanyl analogues, and other synthetic opioids, regardless of drug quantity. The surge will involve a coordinated DEA Special Operations Division operation to insure that leads from street-level cases are used to identify larger scale distributors. Operation S.O.S. was inspired by a promising initiative of the United States Attorney’s Office in the Middle District of Florida involving Manatee County, Florida.

"We at the Department of Justice are going to dismantle these deadly fentanyl distribution networks. Simply put, we will be tireless until we reduce the number of overdose deaths in this country. We are going to focus on some of the worst counties for opioid overdose deaths in the United States, working all cases until we have disrupted the supply of these deadly drugs," Attorney General Sessions said. "In 2016, synthetic opioids killed more Americans than any other kind of drug.  Three milligrams of fentanyl can be fatal — that's not even enough to cover up Lincoln's face on a penny. Our prosecutors in Manatee County, Florida have shown that prosecuting seemingly small synthetic opioids cases can have a big impact and save lives, and we want to replicate their success in the districts that need it most.  Operation S.O.S. — and the new prosecutors who will help carry it out — will help us put more traffickers behind bars and keep the American people safe from the threat of these deadly drugs."...

In Manatee County, a county just south of Tampa with a population of about 320,000, overdoses and deaths skyrocketed in 2015 (780 overdoses/84 opioid related deaths) and 2016 (1,287 overdoses/123 opioid related deaths). In summer of 2016, local law enforcement reported frequent, street-level distribution of fentanyl and carfentanil for the first time.

To combat this crisis, the Middle District of Florida committed to prosecuting every readily provable drug distribution case involving synthetic opioids in Manatee County regardless of drug quantity.  The effort resulted in the indictments of forty five traffickers of synthetic opioids.  Further, from the last six months of 2016 to the last six months of 2017, overdoses dropped by 77.1% and deaths dropped by 74.2%. Overall, the Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average now of less than one per day.

I am not at all keen on the idea of federalizing every small local drug case, but these reported data from Manatee County, Florida leads me to understand why AG Sessions might want to try to expand a program that he believes has proven distinctly effective. The Attorney General also delivered this speech in conjunction with the announcement of this new surge. Here is how he described the new initiative:

It’s called Operation Synthetic Opioid Surge — or S.O.S.

I am ordering our prosecutors in 10 districts with some of the highest overdose death rates—including this one—to systematically and relentlessly prosecute every synthetic opioid case. We can weaken these networks, reduce fentanyl availability, and save lives.

We are going to arrest, prosecute, and convict fentanyl dealers and we are going to put them in jail. When it comes to synthetic opioids, there is no such thing as a small case.

Three milligrams of fentanyl can be fatal. That’s equivalent a pinch of salt. It’s not even enough to cover up Lincoln’s face on a penny. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.

Manatee County, Florida shows that a united and determined effort, focusing on fentanyl dealers, can save lives. Your counterparts in the U.S. Attorney’s Office in the Middle District of Florida tried this strategy in Manatee County, which is just south of Tampa. Like many parts of this country, they had experienced massive increases in opioid deaths in 2015 and 2016.

In response, they began prosecuting synthetic opioid sales, regardless of the amount. They prosecuted 45 synthetic opioids traffickers—and deaths started to go down. From the first six months of 2016 to 2017, overdose deaths dropped by 22 percent. This past January, they had nearly a quarter fewer overdoses as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average of one a day. Those are remarkable results.

As you implement this proven strategy, I am sending in reinforcements to help you. Last month, I sent more than 300 new AUSAs to districts across America .... It was the largest prosecutor surge in decades.

Today I am announcing that each of these ten districts where the drug crisis is worst will receive an additional prosecutor. As a former AUSA and U.S. Attorney myself, I know what you can do — and my expectations could not be higher. Our goal is to reduce crime, reduce fentanyl, and to reduce deaths, plain and simple. I believe that this new strategy and these additional prosecutors will have a significant impact.

July 12, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement

851_coverThe United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements).  A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication.  Here are highlights from the web account:

This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.

Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing.  The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.

Key Findings

Cases in which an 851 enhancement applied are rare.

  • The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
  • The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief.  There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.

The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.

  • In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
  • There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
  • Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn.  Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.

The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.

  • In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
  • Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).

While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.

  • Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
  • Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
  • Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
  • The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.

The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.

July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, July 09, 2018

Lots more great new Quick Facts publications from US Sentencing Commission

In this post a few days ago, I praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data.  Here are just a few of these publications I have been checking out:

There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.

July 9, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Saturday, July 07, 2018

Judge Jack Weinstein laments overuse of federal supervised release (and especially its revocation for marijuana use)

As regular readers know, US District Judge Jack Weinstein regularly produces interesting and important sentencing opinions, and his latest effort focuses on supervised release as well as marijuana reform. This New York Times article about this opinion, headlined "Brooklyn Judge Vows Not to Send People Back to Prison for Smoking Marijuana," starts with this accounting of the effort:

Noting that marijuana has become increasingly accepted by society, a federal judge in Brooklyn made an unusual promise on Thursday: He pledged he would no longer reimprison people simply for smoking pot.

In a written opinion that was part legal document, part mea culpa, the judge, Jack B. Weinstein, 96, acknowledged that for too long, he had been sending people sentenced to supervised release back into custody for smoking pot even though the drug has been legalized by many states and some cities, like New York, have recently decided not to arrest those who use it. Under supervised release, inmates are freed after finishing their prison time, but are monitored by probation officers.

“Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

The full 42-page opinion in US v. Trotter, No. 15-CR-382 (E.D.N.Y. July 5, 2018) (available here), is an interesting read and important for lot of reasons beyond the connections of criminal justice supervision and marijuana reform.  This first part of the introduction provides a taste for all the full opinion covers:

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release?  Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some.  As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

July 7, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, July 05, 2018

Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot

As reported in this local Ohio article, supporters of "a proposal to reduce penalties for nonviolent drug crime offenders submitted hundreds of thousands of signatures on Wednesday to put the measure on the November ballot." Here is more about the remarkable initiative that seems likely to generate some interesting debate in the midst of a big election year in Ohio:

The "Neighborhood Safety, Drug Treatment and Rehabilitation" amendment is backed by a bipartisan coalition of community, law enforcement, faith and business leaders and groups. The Ohio Safe and Healthy Communities Campaign submitted 730,031 signatures Wednesday; 305,591 valid signatures of Ohio registered voters are needed to qualify for the ballot....

Under the drug treatment and rehabilitation amendment:

  • Possessing, obtaining or using a drug or drug paraphernalia would be a misdemeanor offense, with a maximum punishment of 180 days in jail and $1,000 fine. First and second offenses within a two-year period could only be punished with probation.
  • Convicted individuals could receive a half day credit against their sentence for each day or rehabilitative work or programming, up to 25 percent of the total sentence.
  • Individuals on probation for a felony offense would not be sent to prison for non-violent violations of that probation.
  • Individuals convicted of such crimes could petition a court to reclassify the offense as a misdemeanor, which could result in their release from prison.

The provisions would not apply to convictions for the sale, distribution or trafficking of drugs or to convictions for any drug offense that, based on volume or weight, are a first-, second- or third-degree felony.

Money saved from those affected by the amendment would be diverted to substance abuse programs (70 percent) and to crime victims services (30 percent.)

Among the many remarkable elements of the ballot initiative, which can be read in full at this link, is that it proposes a state constitutional amendment; voter approval would make it nearly impossible for the Ohio General Assembly to alter the amendment's terms without another initiative vote.  Here is how the summary of the amendment explains its goals at the outset:

This Amendment would add a new section 12 to Article XV of the Ohio Constitution to reduce the number of people in state prison for low-level, nonviolent drug possession or drug use offenses or for non-criminal probation violations and by providing sentence credits for participation in rehabilitative programs and to direct the savings achieved by such reductions in incarceration to drug treatment programs and other purposes.

I have already heard a few folks express support for the initiatives substantive goals but concerns about amending the Ohio Constitution to achieve those goals. Interesting times.

July 5, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, July 02, 2018

Notable Sixth Circuit panel reverses as procedurally unreasonable big upward variance in cocaine sentence based on opioid overdoses

On Friday, the Sixth Circuit handed down a notable new sentencing opinion in US v. Fleming, No. 17-3954 (6th Cir. June 29, 2018) (available here). The start of the opinion reviews its essentials:

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment.  At his sentencing hearing, the district court doubled that.  It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl.  Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing.  Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed.  Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

Here is small part of the Sixth Circuit panel's analysis:

Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids.  Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

This ruling strikes me as notable or at least two reasons beyond its substantive particulars: (1) one of jurists on Prez Trump's SCOTUS short list, Judge Raymond Kethledge, was one of the judges on this Fleming panel, and (2) this Cleveland.com report highlights that the erroneous sentencing judge has a history of unreasonably long sentences:

An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday -- this time because of his reliance on a cleveland.com article....

Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.  Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give any good reasons for the higher sentences, the 6th Circuit ruled.

July 2, 2018 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, June 29, 2018

Two new documents from Center for American Progress on "Ending the War on Drugs"

Download (17)The Center for American Progress released this week two notable new short papers, titled "Ending the War on Drugs" and "Ending the War on Drugs: By the Numbers."  Here are links to both documents and their introductions:

"Ending the War on Drugs":

Nationwide, communities face an unprecedented rise in substance misuse fatalities. A record 63,600 overdose deaths were recorded in 2016, two-thirds of which involved opioids.  To stem the tide of this crisis, some communities are doubling down on the war on drugs, despite clear evidence that increasing arrests and incarceration does not lower drug use.  But an increasing number of cities are bucking the trend and adopting models that treat substance misuse as a disease, not a crime.  Instead of criminalizing substance use disorders, communities are focusing on saving lives and reducing the harmful effects of drug use.

The idea of “harm reduction” may seem like common sense today, but it signifies a radical departure from traditional U.S. responses to drug use, which relied heavily on the criminal justice system.  More and more cities are expanding access to clean syringes, launching safe-injection facilities, and decriminalizing possession of controlled substances. Public acceptance of these approaches was unthinkable just a few years ago.  Today, however, they are filtering into the mainstream.  In fact, support for harm reduction spans the ideological spectrum.  These strategies are underway in red and blue states alike, representing promising steps toward dismantling the country’s failed drug policy agenda.

"Ending the War on Drugs: By the Numbers"

President Richard Nixon called for a war on drugs in 1971, setting in motion a tough-on-crime policy agenda that continues to produce disastrous results today.  Policymakers at all levels of government passed harsher sentencing laws and increased enforcement actions, especially for low-level drug offenses.  The consequences of these actions are magnified for communities of color, which are disproportionately targeted for enforcement and face discriminatory practices across the justice system. Today, researchers and policymakers alike agree that the war on drugs is a failure.  This fact sheet summarizes research findings that capture the need to replace the war on drugs with a fairer, more effective model that treats substance misuse as a public health issue — not a criminal justice issue.

June 29, 2018 in Data on sentencing, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, June 25, 2018

Can we predict how federal immigration crackdowns will impact the modern drug war?

The question in the title of this post is prompted by this USA Today piece headlined "DOJ: Trump's immigration crackdown 'diverting' resources from drug cases." Here are excerpts:

Federal prosecutors warned they were diverting resources from drug-smuggling cases in southern California to handle the flood of immigration charges brought on by the Trump administration’s border crackdown, records obtained by USA TODAY show.

Days after Attorney General Jeff Sessions instructed prosecutors to bring charges against anyone who enters the United States illegally, a Justice Department supervisor in San Diego sent an email to border authorities warning that immigration cases “will occupy substantially more of our resources.”  He wrote that the U.S. Attorney’s Office there was “diverting staff, both support and attorneys, accordingly.”...

Sessions last month ordered federal prosecutors along the southwest border to bring criminal charges against every adult caught entering the United States illegally, a “zero tolerance” push meant to deter migrants. Those cases typically are seldom more than symbolic — most of the people who are charged are sentenced to no additional jail time and a $10 fee — but they have served as the legal basis for separating thousands of children from their parents at the border.

The border crackdown has produced a high-speed assembly line of minor cases in federal courts from California to Texas, more than doubling the caseloads there.  This month alone, USA TODAY identified more than 4,100 migrants who were charged with minor crimes after crossing into the United States from Mexico.

Kelly Thornton, a spokeswoman for the U.S. Attorney’s Office, said in a statement that the Justice Department “has given our district the necessary resources -- including 10 additional prosecutor positions plus at least five Department of Defense attorneys -- to prosecute all of these crimes.”  She said the number of smuggling cases prosecuted there is on track to go up this year.  Still, there are signs that border authorities are seeking to prosecute drug smugglers in state courts instead, even though the possible sentences typically are harsher in the federal system.

The District Attorney’s office in San Diego said Friday that the number of cases submitted to them by border authorities had more than doubled since the administration started its border crackdown.  Spokeswoman Tanya Sierra said Homeland Security agents referred 96 drug cases to the office between May 21 and June 21, compared to 47 over the same period last year.  Most of the cases involved more than a kilogram of drugs, Sierra said.

Meanwhile, the number of people charged in federal court has dropped since the start of the administration’s zero-tolerance push, said Reuben Cahn, the chief federal public defender in San Diego....

USA TODAY examined 2,598 written judgments in border-crossing cases filed in federal courts along the border since mid-May.  In nearly 70 percent of those cases, migrants pleaded guilty and immediately received a sentence of time served, meaning they would spend no additional time in jail.  Another 13 percent were sentenced to unsupervised probation, including a condition that they not illegally re-enter the United States.  In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted.

This newspaper analysis highlights just some ripple effects of any significant change in federal prosecutorial priorities: with more resources developed to federal immigration cases, there may be fewer federal drug cases brought; but more cases may be handed over to state authorities.  And, in various settings involving non-citizen subject, the results of state or federal prosecution may be impacted by the fact that deportation will follow any conviction.

June 25, 2018 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, June 24, 2018

Remarkable tale of how uncertain criminal laws and their enforcement can produce extraordinary punishment inequities

I understand concerns about the potential for sentencing disparities that can arise from broad judicial discretion, but I have always noticed how many significant inequities can result from many other aspects of criminal case processing.  In this recent post, I flagged this new remarkable series produced by Florida newspapers documenting how prosecutors are responsible for locking up defendants of different races for much different periods.  And this morning my local newspaper has this remarkable story, headlined "Two bath-salts prosecutions lead to far different results," reporting on two similar defendants in Ohio getting remarkably different outcomes: one walking free and the other sentenced to 35 years in prison!  Here are the details:

Both men operated retail stores within blocks of each other in the Short North area. Both were arrested in 2012 and charged with selling bath salts, a synthetic hallucinogen.  One walked free, his case dismissed by a Franklin County judge.  The other, whose case was assigned to a different judge, was convicted and sentenced to 35 years in prison, with no chance for parole....

For Soleiman Mobarak, the man sent to prison, “it’s just a matter of bad timing and bad luck,” said his attorney, Robert Behal. “Hopefully, our system is better than that, where it’s not a matter of luck whether you get 35 years or zero.”

At one point, Mobarak, 35, was set free. In July 2015, 13 months after he was sent to prison, the Franklin County Court of Appeals overturned his conviction.  A three-judge panel ruled that selling and possessing bath salts and other designer drugs known as controlled-substance analogs was not a crime in Ohio when undercover investigators purchased them from Mobarak at his East 5th Avenue convenience store in May, June and July 2012.

Common Pleas Judge Laurel Beatty Blunt had reached a similar conclusion when she dismissed a bath-salts case against Thomas C. Smith in February 2014.  The appeals court upheld Beatty Blunt’s ruling in December 2014.  Smith, 63, who owned three shops on North High Street, and Mobarak both were swept up in a sting operation conducted by the Franklin County Drug Task Force, which was targeting the sale of synthetic designer drugs.

In both cases, the appeals court found that controlled-substance analogs, including bath salts, didn’t become illegal until the Ohio legislature included them in the criminal drug-offense statutes through a bill that took effect Dec. 20, 2012.  The Franklin County Prosecutors Office appealed those decisions to the Ohio Supreme Court. 

The Supreme Court declined to hear the appeal of Smith’s case in October 2015, which put an end to any efforts to prosecute him....  But before the Supreme Court got around to making a decision on the Mobarak appeal, the 12th District Court of Appeals ruled in a Warren County case that controlled-substance analogs were illegal in Ohio as of October 2011.  When that ruling was appealed to the Supreme Court, the justices had two pending cases in which appeals courts had reached conflicting opinions about the issue.  The justices chose to hear the cases, and in December 2016 they agreed with the 12th District court — controlled-substance analogs were criminalized in October 2011, before the sales made by Mobarak and the Warren County defendant.

Franklin County prosecutors filed a motion asking the trial court to revoke Mobarak’s bond and return him prison to complete his sentence.  The judge who sentenced Mobarak, Pat Sheeran, had since retired. His replacement, Judge Jeffrey Brown, inherited the case. June 12, after months of court filings, Brown issued what appeared to be a reluctant ruling.  Twice in his 38-page decision, Brown wrote that he was “troubled” by Mobarak’s situation. “The court’s hands are tied, however,” by the Supreme Court ruling, he wrote. “This court has no authority to modify the sentence ... Mobarak must begin to serve the remainder of his sentence.”

Had the conflicting case from Warren County not intervened, the Supreme Court presumably would have declined to hear the Mobarak case, just as it had done with Smith, Behal said.  Mobarak, like Smith, would be a free man.  “The passage of time created disparate results, and that’s tough to take,” Behal said.

Prosecutor Ron O’Brien has a different view of the fates of the two defendants.  “It’s unfortunate that Smith evaded responsibility just because of timing, but that does not mean Mobarak should evade responsibility,” O’Brien said. “Mobarak shouldn’t benefit from what was a wrong decision from the beginning.  Everybody knew how bad bath salts were, including the people who were selling them.  They were just playing games with the classifications.  Luckily, the Supreme Court finally straightened it out.”

June 24, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Tuesday, June 12, 2018

"Possession's not enough: Expunge all weed convictions"

Legal Marijuana Oregon Measure 91The title of this post is the headline of this recent editorial from the Newark Star-Ledger.  Regular readers likely know I take a shine to this opinion piece because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which call for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.  Here are excerpts from the editorial:

Even as New Jersey is poised to legalize marijuana, the cops are still arresting tens of thousands of people annually, mostly minorities, just for having a little pot. Many can't find work because of the stigma.

Jo Anne Zito was rejected for a job at Godiva chocolates because of a low-level marijuana possession charge, she told lawmakers last week. So, as we contemplate legalizing recreational weed, we need to ask: Does it make sense that people like her still won't be able TO get work at a candy store?

No. We can't legalize marijuana, yet continue to force them to "walk around with a scarlet letter," as Assemblywoman Annette Quijano (D-Union) put it. The answer is expungement. But the current debate is far too limited.

Quijano introduced a bill to allow those caught with a little pot to apply to have their records cleared; advocates argue they shouldn't have to initiate that onerous process, the state should do it automatically. None of this goes far enough.

We need to think big. We need to admit this was a mistake in the first place, and that a lot of decent people were caught up in the dragnet. So, sparing only those who possessed small amounts is really just a first step.

We need to expunge the records of those caught with more than just a little pot. And we need to expunge the records of low-level dealers as well, if a judge approves, as long as they didn't commit more serious crimes like selling to minors, carrying guns, or committing acts of violence.

Aside from cleaning these records, we need to release those currently imprisoned on such charges. Does it make sense to hold thousands of people behind bars for selling weed, while the government allows sales outside the prison walls?...

All states that have legalized pot have only done so for certain amounts. Anyone arrested for possessing more gets a ticket, rather than a criminal charge. Yet if our expungement policy is modeled to match, those previously charged with having any more pot can't get that wiped from their records. They will continue to be barred from employment, even as people who buy heaps of it after legalization are merely ticketed. That needs to be fixed. Expunging high-level dealing charges is likely impossible, for political reasons. But we should at least include intent to sell and lower level distribution and growing charges.

Granted, this is not without risk. A guy who pled down to a marijuana charge from money-laundering, for example, shouldn't get out of doing his time, or a criminal record. But we could include prosecutorial review, as a bill moving through California's legislature would. It requires the state to automatically dismiss any old marijuana charges, yet prosecutors would sift through the higher-level cases and contest them if necessary. California already allows many past pot charges to be dismissed or reduced based on a defendant's petition, although they might still surface if you apply for a government job.

Yes, it's a huge undertaking to expunge all these convictions retroactively, especially if our state does so without requiring a petition. But we derailed hundreds of thousands of lives with needless marijuana prosecutions, and nobody helped those people get jobs or find housing. Now we are saying it never should have happened. So let the state overcome the logistical hurdles, too.

Actually, with a little bit of advanced planning and the right infrastructure, it does not necessarily have to be a "huge undertaking" to expunge past marijuana convictions. Indeed, as noted in this post over at my marijuana blog, "Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program," private players are willing to help in various ways with this effort.

I have blogged a lot about this issue over at my Marijuana Law, Policy and Reform blog, and here is just a sampling of some recent postings:

June 12, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Sunday, June 10, 2018

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

The title of this post is the headline of this new Wall Street Journal article with this subtitle summarizing its contents: "Attorney general vowed to toughen federal enforcement of the drug, but he doesn’t have support from Trump or Congress." Here are excerpts: 

Attorney General Jeff Sessions vowed to use federal law to get tough on marijuana, announcing in January he was ending Obama-era protections for the nascent pot industry in states where it is legal. Six months into his mission, he is largely going it alone.

Mr. Sessions’ own prosecutors have yet to bring federal charges against pot businesses that are abiding by state law. And fellow Republicans in Congress, with support from President Donald Trump, are promoting several bills that would protect or even expand the legal pot trade.

As a result, Mr. Sessions, an unabashed drug warrior, has struggled to make his anti-marijuana agenda a reality, a notable contrast with the success he has had in toughening law-and-order policies in other criminal justice areas.

Marijuana advocates say Mr. Sessions’ approach, in seeking to spur a crackdown on the legal marijuana market, has largely backfired. It has catalyzed bipartisan support for research, they say, and for action to improve the young industry’s access to banks, which have been generally unwilling to accept proceeds from pot sales.

Underlining the pushback, Sen. Cory Gardner, (R., Colo.) on Thursday joined Sen. Elizabeth Warren (D., Mass.) in introducing a bill that essentially would allow states to pass their own marijuana laws without interference from the federal government. Mr. Trump on Friday reiterated his support for Mr. Gardner, saying “I know exactly what he’s doing, we’re looking at it, but I probably will end up supporting that, yes.”...

In an unusual move by a Republican senator against his own party’s attorney general, Mr. Gardner blocked nominees for Justice Department jobs after Mr. Sessions announced he was undoing the Obama administration’s approach. Mr. Gardner stood down after receiving assurances that Mr. Trump would support protections for pot-legal states like Colorado, essentially undermining Mr. Sessions on the issue. “If they’ve voted to have a legal industry, then it would allow them to continue forward without violating any federal law,” Mr. Gardner said of the bill he co-authored with Ms. Warren.

House Republicans are also supporting a number of other marijuana-related measures. Rep. Matt Gaetz (R., Fla.) is pushing his colleagues to allow more marijuana research, which he hopes will pave the way to rescheduling pot—that is, categorizing it with less dangerous drugs on the Drug Enforcement Administration’s list of illicit substances.

Supporters of relaxing marijuana drug laws cheer the recent developments. “It was terrific,” said Don Murphy, director of federal policy for the Marijuana Policy Project, said of Mr. Sessions’ threat to the industry. “It moved this issue to a burner.” Pot foes caution it is too soon to judge the impact of Mr. Sessions’ changes. “It’s not a win for Jeff Sessions, but at the end of the day he still directs the department and could have the DEA close marijuana businesses,” said Kevin Sabet, president and CEO of the antipot group Smart Approaches to Marijuana.

Mr. Sessions’ January marijuana policy left federal prosecutors to decide what resources to devote to marijuana crimes, stirring fear among dispensary owners that raids and arrests were imminent. Instead, many U.S. attorneys continued to use their limited manpower to target unusually brazen marijuana operations that are also illegal under state law, such as sprawling marijuana growers on federal lands or gangs that peddle pot along with other drugs.

Billy Williams, Oregon’s U.S. attorney, for example, is targeting the trafficking of marijuana across state lines, organized crime and businesses that supply pot to minors. This in many ways resembles the policy that prevailed under the Obama administration, which urged states to tightly regulate marijuana and keep it from crossing state lines to avoid federal scrutiny. “I’m not making any blanket statements that we wouldn’t prosecute anyone,” Mr. Williams said. “It’s a case-by-case basis.”

Colorado’s U.S. attorney, Bob Troyer, is aggressively prosecuting drug traffickers who grow pot on federal lands, which is against both state and federal law. But his office hasn’t brought charges against dispensaries that comply with the state’s regulations. “We never would give anyone immunity for violating federal law,” Mr. Troyer said. “As those threats evolve and change, something else could rise to the top priority level.”

All the particulars of these stories should be familiar to regular readers of my Marijuana Law, Policy and Reform blog, and here are just a few of many recent posts providing more of those particulars:

June 10, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)