Monday, February 05, 2024

With possible opinions this week, might SCOTUS soon answer if "and" means "or" in Pulsifer safety valve case?

Regular readers likely recall that I have been watching closely the SCOTUS sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The unclear statute at issue in Pulsifer became law in 2018, was dividing circuits by 2021,and the Pulsifer cert petition was filed in October 2022 and granted by SCOTUS in February 2023.  (In addition, the US Sentencing Commission felt compelled in 2023 to build guideline amendments around the statutory ambiguity.)  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of an expansion of the safety value mandatory minimum exception — has long been needed and has been a long time coming.

But the Supreme Court has now indicated that on Thursday, the day the Justices are scheduled to hear oral argument on whether Donald Trump is now constitutionally ineligible to be President, it "may announce opinions."  I think that means we will definitely get at least one opinion, though how many and which one are left as matter of speculation.  So, in this post, I am speculating on the chances that we could get Pulsifer this week.  And though I am wishing hard that the Pulsifer opinion is just days away, and even though the Pulsifer oral argument was the very first of this current Term, I am not getting my hopes up.

The Justices have been notably slow in the release of opinions this Term, and Adam Feldman here at Empirical SCOTUS has some great data and thoughts on opinion pacing.  So, it wil not surprise me if we were to get only one or two opinions this week.   And, historically, the opinions that get handed down "earlier" are those that are unanimous or nealy unanimous.  The oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  Though I suspect we will get Pulsifer within the next few months and not have to wait until late June, I would not place a prop bet that it's coming this week.  But it would be cool to be proven wrong with this prognostication.

A few prior related posts about SCOTUS Pulsifer case:

February 5, 2024 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, January 31, 2024

Notable whimper for end of decades long federal prosecution of California medical marijuana dispensary owner

As detailed in posts linked below, nearly 15 years ago, I blogged a bit about some interesting sentencing developments in the federal prosecution of Charles Lynch, a fellow who ran a medical marijuana dispensary in California.  This new Los Angeles Times piece, headlined "He opened a medical pot dispensary in California. The feds spent 16 years prosecuting him," details that the case is only now reaching a resolution.  One needs to read the full piece to get the full story, but here are excerpts to whet appetites:

For nearly 17 years, the federal government has been after Charles Lynch for running a medical marijuana dispensary. Prosecutors refused to drop their criminal case against him even as marijuana became fully legal in California and 23 other states. They refused to let it go when Congress forbade the Department of Justice from using its funds to criminally prosecute medical marijuana activities that were consistent with state law.

Prosecutors have pursued Lynch’s case — which involves conflicting state and federal marijuana laws — through appeals and delays and criticisms that they were spending too many resources on a case that meant so little. “Twenty-five percent of my life,” Lynch, now 61, said in a Southern drawl at a hearing in downtown Los Angeles this month.

When federal authorities launched their probe in 2007, George W. Bush was in the White House and Lynch was a respected businessman in Morro Bay with a three-bedroom ranch-style house in nearby Arroyo Grande. These days, he struggles financially, lives in a single-wide trailer on his mom’s property in New Mexico and strains to remember the details of the marijuana operation that got him in so much trouble....

Lynch and his lawyers have portrayed the case as a pointless exercise by the Department of Justice that has cost taxpayers — who are footing the bill for both the prosecution and his public defenders — millions of dollars. Even the federal judge has expressed impatience, telling the prosecutor: “At some point in time, this case has to be resolved.”

Why the federal government continued to pursue the case so ardently remains unclear — even this week, when it took a new twist that caught everyone involved by surprise.

Prior related posts from 2009:

January 31, 2024 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2)

New stories suggesting that new west-coast legal approaches failing in face of scourge of fentanyl

A couple of notable press pieces this morning highlight data and developments indicating that the harms of the fentanyl crisis are growing in two notable jurisdictions that have been pursuing less punitive approaches to drug policy.  First, news from Oregon:

"In downtown Portland’s fentanyl crisis, Oregon leaders declare emergency"  Snippets:

Multnomah County, the city of Portland and the state of Oregon are embarking on a 90-day experiment to address downtown Portland’s fentanyl crisis. Tuesday, the three governments jointly declared a fentanyl emergency, directing their agencies to work alongside each other on programs that connect people addicted to the synthetic opioid with treatment programs and to crack down on drug sales....

The declaration comes years after fentanyl rooted itself in the region, spurring deaths, addiction and violent crime. According to Multnomah County, the number of overdose fatalities involving fentanyl increased 533% between 2018 and 2022 in the county. The region has also experienced a serious shortage of substance use treatment providers and recovery centers — despite the 2020 passage of a ballot measure meant to fund new drug treatment programs across Oregon. Measure 110 also decriminalized small amounts of illicit drugs, an aspect that state lawmakers are aiming to renegotiate in this year’s legislative session, which begins next week....

Max Williams, the former state lawmaker who also previously led the Oregon Corrections Department, issued a statement saying the emergency was a good start. “But a permanent fix to Measure 110 is necessary,” he said, citing the 2020 drug decriminalization measure. Williams, with the Coalition to Fix & Improve Measure 110, which is considering a ballot measure this fall, said the state “needs to recriminalize possession of fentanyl and other hard drugs as a Class A misdemeanor to help save lives and rescue communities.”

Second, the New York Times has this lengthy new piece exploring reasons why San Francisco has not been able to replicate the success that Portugal has seen with less punitive drug policies. This piece's full headline reads: "Can San Francisco Solve Its Drug Crisis? Five Things to Consider. A comparison with Portugal’s approach to decriminalization shows why many liberal cities have struggled to match its success."  I highly recommend this piece in full, and here is its start:

San Francisco is in the middle of a drug crisis.  Overdose deaths reached a record high last year, topping 800.  Public drug use is widespread in some neighborhoods.  How did San Francisco get to this point? In part, it follows the national story: The rise of fentanyl, a synthetic opioid, and a destabilizing pandemic caused a spike in addiction and overdose deaths.

But San Francisco’s drug crisis has outpaced the country’s. In 2014, the city’s overdose death rate was roughly in line with the national average. As of last year, its rate was more than double the national average, and San Francisco was No. 4 for overdose deaths among U.S. counties with more than 500,000 people. The country’s overdose crisis worsened over the past decade as fentanyl spread, but San Francisco’s worsened much more quickly.

Local policy changes are partly to blame, some experts say. In 2014, California voters passed Prop 47, reducing drug possession to a misdemeanor from a felony.  Different parts of the state have interpreted the change differently.  In San Francisco, law enforcement has responded by scaling back efforts against drugs, de-emphasizing incarceration and effectively allowing public drug use.

Those who support at least partial decriminalization often cite the experience of Portugal, which decriminalized all drugs more than two decades ago and then saw a decline in drug-related problems.  In 2019, the San Francisco district attorney at the time, George Gascón, even visited Portugal to learn more.  But while San Francisco and other liberal cities have embraced some aspects of Portugal’s decriminalization laws, they have struggled to replicate Portugal’s success.

The comparison with Portugal is not perfect. For one, fentanyl has not taken over Portuguese drug markets, and has a relatively small presence in Europe as a whole.  Still, the comparison gives a way to think about the challenges that San Francisco and other cities have faced.  Those challenges can be broken down into five parts, each touching on a different aspect of drug policy.

January 31, 2024 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (8)

Monday, January 22, 2024

"Policing Substance Use: Chicago's Treatment Program for Narcotics Arrests"

The title of this post is the title of this recent paper I just came across on SSRN authored by Ashna Arora and Panka Bencsik. Here is its abstract:

In the United States, law enforcement officers serve as first responders to most health crises, allowing them to connect many more individuals to treatment services than other government actors, a fact that has come into increasing focus due to the opioid epidemic.  In response, police departments across the country have begun to divert individuals that possess narcotics away from arrest and towards treatment and recovery.  Evidence on whether these programs are able to engender meaningful change — initially by increasing participation in substance use treatment, and eventually by reducing the likelihood of continued drug use and criminal justice involvement — remains limited.

This paper aims to shed light on the potential of these programs by exploiting the eligibility criteria for and staggered rollout of narcotics arrest diversion in Chicago between 2018 and 2020 using a triple difference framework.  We find that the program reaches individuals with medically diagnosed substance use disorders, increases connections with substance use treatment, and reduces subsequent arrests.  We conclude that Chicago’s drug diversion program is able to simultaneously reduce the reach of the criminal justice system, expand the number of individuals with substance use disorders connected with treatment, and improve public safety.

January 22, 2024 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Thursday, December 07, 2023

In a different context, some more notable circuit caterwauling over the categorical approach to criminal history

In this post a few days ago, I flagged the notable opinion from a Third Circuit judge in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here), lamenting the ugly story of the Armed Career Criminal Act's reliance on the "categorical approach" to assess criminal priors required by Supreme Court precedent.   Today, I see a Second Circuit jurist authoring a distinct chapter of this ugly story in a different sentencing context.  Concurring in US v. Chaires, No. 20-4162 (2d Cir Dec. 7, 2023) (available here), Judge Sullivan explains why he thinks his circuit has it all wrong in its approach to "the 'controlled substance offense' predicate to U.S.S.G. § 4B1.1 — the career offender enhancement."  Hard-core sentencing fans may be uniquely able to work through the whole opinion, but it is worth the full read.  And Judge Sullivan's opinion ends this way:

Given the Commission’s indecision and the Supreme Court’s reluctance, I think it imperative that the courts of appeal converge on the best reading of the career offender enhancement.  To my mind, there can be little doubt which of the two options is that best reading.  The state-dependent approach is firmly grounded in section 4B1.2(b)’s text and will permit a relatively straightforward inquiry.  The categorical approach lacks any foothold in that text, has proven to be hopelessly difficult to administer, and illogically disqualifies untold numbers of state and federal narcotics convictions from serving as predicate offenses — even though those convictions were in fact premised on a federally controlled substance.  For these reasons, I continue to believe that section 4B1.2(b) calls for a state-dependent approach to controlled substance offenses, as six of our sister circuits have already held.  See Jones, 81 F.4th at 599 n.5.  I therefore urge the Second Circuit to correct this error through an en banc or mini en banc proceeding that would overrule our currently binding precedent in Townsend and bring us in line with the majority of circuits to have addressed this issue.   

December 7, 2023 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, December 06, 2023

"Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Center and authored by Margaret Love and Nick Sibilla. Here are parts of the report's introduction:

This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act. PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms. Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms. Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research. Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming. We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project.

December 6, 2023 in Collateral consequences, Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, December 03, 2023

Notable grant of compassionate release, supported by prosecutors, for drug prisoner serving mandatory life

A helpful reader made sure I saw a notable new grant of compassionate release in US v. Vanholten, No. 3:12-cr-96-RBD-MCR (MD Fla. Dec. 1, 2023) (available here).  The 15-page opinion is worth a full read, and here is the start of the opinion and the heart of the ruling:

Mr. Vanholten is serving a life sentence for trafficking cocaine, in essence, because he sold two dime bags of marijuana, $20 worth, to two undercover police officers when he was nineteen years old.  In January 2012, he was pulled over on I-95 northbound while driving in tandem with another car carrying ten kilograms of cocaine in the trunk.  Investigators linked Mr. Vanholten to the cocaine, leading to his arrest and indictment on one count of aiding and abetting the possession and intent to sell over five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2.  The Government filed a 21 U.S.C. § 851 information advising the Court that Mr. Vanholten had a prior felony drug conviction — a 2006 federal charge for possession of 250 grams of cocaine with intent to distribute — which enhanced the mandatory minimum penalty to twenty years for his crime. He remained in custody after his arrest pending trial.

Plea negotiations broke down because Mr. Vanholten would not say “where [the cocaine] came from and where it was going.”  In turn, the Government amended the § 851 notice to add a second prior drug felony — the previously mentioned 1996 marijuana offense — which upped the mandatory minimum to life in prison. Despite the looming prospect of life behind bars, the case went to trial.  On August 3, 2012, a jury convicted Mr. Vanholten of the indicted charge.

Bound by the § 851 enhancement, this Court imposed a term of life imprisonment on November 19, 2012, to be followed with ten years of supervised release.  In its remarks, the Court expressed it “would not impose a life sentence but would impose a sentence of a significant period of incarceration” if it had any discretion to do so. Mr. Vanholten has remained incarcerated with the Federal Bureau of Prisons (“BOP”) ever since.....

First, extraordinary and compelling reasons exist where the defendant (1) is suffering from a serious physical or medical condition that (2) substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and (3) from which he is not expected to recover. U.S.S.G. § 1B1.13(b)(1)(B)(i). Though he is not at death’s door, Mr. Vanholten’s medical records show that his sarcoidosis is both chronic and persistent, hurting his lungs and pulmonary function....

Second, Mr. Vanholten also presents a combination of circumstances that, considered with his health, are “similar in gravity” to the other reasons explicitly listed in subsections (b)(1)–(4) of the policy statement. See U.S.S.G. § 1B1.13(b)(5) (newly amended catch-all provision). As discussed, his deteriorating health is a serious medical condition. His rehabilitation and clean disciplinary history while incarcerated are remarkable. And it is extraordinary that the Government supports Mr. Vanholten’s release and clemency application. In the words of the parties, these factors, “combined with length of time he has already served in the BOP, and the reduced mandatory minimum sentence he would face today, together are ‘similar in gravity’ to the circumstances of U.S.S.G. § 1B1.13(b)(1)–(4),” and so establish extraordinary and compelling 13 reasons for release.5 (Doc. 96, ¶ 8.)

December 3, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (3)

Monday, November 27, 2023

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

November 27, 2023 in Drug Offense Sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, November 13, 2023

Supreme Court grants cert on federal drug case concerning expert testimony on defendant's knowledge

This morning brings this new Supreme Court order list that finally has something interesting for criminal justice fans.  Actually, there are two matters of interest, a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  In this post I will cover the cert grant and follow up with a separate post on the cert denial.

The cert grant comes in Diaz v. US, and John Elwood here at SCOTUSblog effectively summarized this case last week after it prompted a relist:

Delilah Diaz was stopped returning from Mexico to her home in California.  Officers were suspicious that Diaz’s window made a “crunching” noise when she rolled it down, so they searched the car and found nearly 28 kilograms of methamphetamine — worth almost $400,000 — in the door panels.  Diaz said that she had borrowed the car from her boyfriend and did not know about the drugs.  At her trial, prosecutors called a law-enforcement agent as an expert witness to testify that in most cases, couriers know they are transporting large quantities of drugs across the border and that traffickers rarely risk the potential of large losses on “blind mules” — couriers who are unaware what they’re carrying. Diaz was convicted.

On appeal, Diaz argued that the testimony was inconsistent with Federal Rule of Evidence 704(b), which states that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged,” which is a question “for the trier of fact alone.” The U.S. Court of Appeals for the 9th Circuit affirmed Diaz’s conviction.  It concluded that Rule 704 only bars expert witnesses from stating an express opinion about whether a particular person knew they were committing a crime, not from stating general opinions about similar defendants and the likelihood of their culpability.

Diaz has now petitioned the Supreme Court for review.  She argues that that the testimony would have been thrown out in the U.S. Court of Appeals for the 5th Circuit, which has held that such testimony is inadmissible.  The 5th Circuit, she notes, includes Texas and, therefore, nearly all of the rest of the southern border, and she argues that the conflict between two border states’ appellate courts must be resolved. The government acknowledges a “disagreement between the Fifth Circuits and other circuits” but it contends that any disagreement “does not warrant this Court’s review.”  The 5th Circuit’s test, the government claims, is heavily “fact dependent.”  The government also argues that any error from admitting the agent’s testimony was harmless because the evidence of guilt in Diaz’s case was strong, because her story was “flimsy”: She didn’t know where her supposed boyfriend lived or his phone number, and although she claimed to dislike driving at night, she arrived at the border at 2 a.m. 

Here is how the petition for cert presents the question in Diaz:

Federal Rule of Evidence 704(b) provides: “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed. R. Evid. 704(b).

The question is: In a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

November 13, 2023 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Sunday, November 12, 2023

Former Prez Trump again talking up the death penalty as a way to address drug problems

Back in March 2018, as noted in this post, then Prez Donald Trump started talking up the idea of the death penalty for drug dealers as part of his stump speeches.  Way back then, I noted that constitutional questions about any such law would be sure to reach the Supreme Court and also that, at that time, there had not been any federal execution for well over a decade.  I also noted that the then-GOP-controlled Congress was working on a sentencing reform bill that could have been a vehicle for adding his Trump's capital sentencing idea.  

Fast forward five+ years, and now Prez-candidate Donald Trump is again talking up the idea of the death penalty for drug dealers as part of his stump speeches.   This Hill article, headlined "Trump doubles down on death penalty for drug dealers," explains:

Former President Trump doubled down on calling for the death penalty for drug dealers Saturday. “President Xi in China controls 1.4 billion people, with an iron hand, no drug problems, you know why they have no drug problems?” Trump said at a campaign event in New Hampshire Saturday. “Death penalty for the drug dealers.”

“You want to solve your drug problem, you have to institute a meaningful death penalty for… a drug dealer,” the former president continued.

This isn’t the first time the former president has called for the death penalty for drug dealers.  Back in June, Trump notably advocated for drug dealers getting the death penalty in a Fox News interview, despite the fact it would have applied to Alice Johnson, a woman whose sentence Trump commuted in 2018.

Though I consider Trump's comments to be more political posturing than policy proposal, I am struck by how the legal landscape has changed since I was commenting about these ideas back in March 2018.  With Justices Kennedy and Ginsburg replaced by (Trump-appointees) Justices Kavanaugh and Barrett, the current Supreme Court seems much more likely to uphold broader applications of the federal death penalty.  I make that statement in part because these Justices expressed no concerns about the 13 federal executions that were carried out in the final six months of Trump's presidency.  And, of course, the sentencing reform bill I was talking about in March 2018 became the FIRST STEP Act that was signed into law by Trump toward the very end of that year.  (Might Trump sometime start describing his "Death penalty for the drug dealers" proposal as a second step in sentencing reform?)     

Prior related posts from 2018:

November 12, 2023 in Campaign 2024 and sentencing issues, Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (7)

Friday, October 06, 2023

Plugging again the "Drugs on the Docket" podcast (with updated content) before hitting road

350x350bbI will be on the road (and often offline) over the next couple weeks, and so it seems like a great time to flag again recent work of the Drug Enforcement and Policy Center at The Ohio State University in the form of our "Drugs on the Docket" podcast. 

As noted in prior posts when the podcast was first released a few months ago, a set of six episodes  comprises the first season, with each episode running under an hour.  The whole original season is fully available on Apple PodcastsGoogle Podcasts and YouTube.  And, excitingly, the "Drugs on the Docket" team (of which I am a member) has been spending recent few weeks recording some updated content through shorter recordings (under 20 minutes) covering new legal and policy developments related to issue each of the full episodes of Season 1.  Some of these have already been released an a few more are forthcoming.

I have noted before my (admittedly biased) view that the curated discussions in this "Drugs on the Docket" podcast are all interesting and informative.  Because I am eager to see this podcast grow its audience (and also because my colleagues at DEPC have worked remarkably hard to put this content together), I will keep using this space to encourage everyone to check out all the episodes (and I will keep welcoming substantive suggestions as we work on topics for Season 2).   

Once again, here is how the podcast subject matter is generally described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Especially since I will likely have less content in this blog space over the next 10 days, I hope many folks will take a few moments to check out the "Drugs on the Docket" podcast.

October 6, 2023 in Drug Offense Sentencing | Permalink | Comments (0)

Thursday, October 05, 2023

Last Prisoner Project releases big new report on "The State of Cannabis Justice"

The Last Prisoner Project, a marijuana reform group, has today releases a set of state report cards as part of a big new report titled "The State of Cannabis Justice." This LPP website shows the state-by-state grades that are explained more fully in this 70-page report. Here is the report's executive summary:

A deeper look into the status of cannabis justice policy throughout the nation reveals that cannabis justice policy is rapidly progressing and has situated itself at the center of policy priorities.

As of 2023, 23 states have enacted adult-use cannabis legalization, 24 states have enacted cannabis-specific record clearance laws, and 10 states have enacted cannabis-specific resentencing laws.  Importantly, these criminal justice policies have become commonplace in recent legislation.  In fact, since 2018, 100% of the 13 states that have legalized cannabis have included record clearance policies and since 2021, they have all been state-initiated.  While resentencing policies have been slower to take hold, they are also growing in importance and have been included in more than half of the legalization bills since 2020.  The increasing inclusion of these policies speaks to the importance of providing relief for individuals harmed by the historically unjust War on Drugs.

Unfortunately, the report also shows that, despite the country’s progress in the breadth and depth of cannabis justice policy, we are still far behind.  While more and more states are working to include retroactive relief for cannabis related offenses, the policy lags behind in every single state.

While states such as California, Minnesota, Maryland, and New Mexico have strong statutory language, they have all fallen behind in actually offering relief to impacted individuals. In California, the deadline to effectuate record clearance has passed, yet, over 20,000 individuals are still without relief.  In Minnesota, the structure of a separate review board has caused significant delays, leaving the state yet to appoint the board despite the instructed start date already passing.  In Maryland, it is unknown if the state has begun to enact the criminal justice provisions. In New Mexico, the state has faced rollback efforts to limit the impact of retroactive provisions throughout the past two years.

These implementation struggles make it clear that statutory language is only a start to effective change, and this report only touches the surface in evaluating the accessibility of relief.  The progress of cannabis justice policy is promising, but an evaluation of their status shows that there is still much to be done.

October 5, 2023 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Sentences Reconsidered | Permalink | Comments (2)

Thursday, September 21, 2023

US Sentencing Commission releases FY 2023 third quarter sentencing data (and the stories of crack sentencing continues to evolve)

Earlier this week, the US Sentencing Commission released on its website its latest quarterly data report which is labelled "3rd Quarter Release, Preliminary Fiscal Year 2023 Data Through June 30, 2023."  These new data provide the latest accounting of how federal sentencing is working toward a new normal in the wake of a COVID pandemic and related evolutions in the federal criminal justice system.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be between 15,000 and 17,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 12 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is mostly a facet of the different caseload and case mixes.  In the most recent quarters, the official data show that only around 42.5% of all federal sentences are imposed "Within Guideline Range."  This number continues the modern reality that, since the pandemic hit, significantly more federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 should be especially striking.  These figures show, for the last three quarters, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencing caseload than powder and crack cocaine, heroin and fentanyl combined.  Moreover, the average sentence for all those meth cases is well over eight years in prison (and has been rising in recent quarters), whereas the average for all the other drug cases is around six years or lower.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentences upon, the meth defendants than anyone else. 

Especially notable is how few crack cases are being sentenced and how relatively low average crack sentences now are.  Back in FY 2008 (a little before the sentencing reforms of the Fair Sentencing Act), the USSC data showed that over 6000 crack defendants were been federally sentenced that year with an average sentence approaching 10 years in prison.  But now, with only 4.6% of the federal drug sentencing caseload involving crack cases, it seems likely that fewer than 1000 crack defendants will be sentenced in federal court in FY 2023 and in the latest quarter the average crack sentence was well under 5 years.  In other words, the crack caseload has gone down by more than 80% and the average sentence has gone done by more than 50%.  Remarkable.

September 21, 2023 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (2)

Wednesday, September 13, 2023

"Examining Underlying Reasons for Continued Public Support for Punitive Sentencing for Drug Offenses in the U.S.: Preliminary Results from Three National Experiments"

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

This grant report reports preliminary results for three experimental studies with national samples of the U.S. public that examine why many members of the public continue to support punitive approaches to the sentencing of different drug offenses.  The findings have implications for understanding and influencing U.S. public support for sentencing approaches for drug offenses, including data to suggest that many members of the public back laws and approaches that align with or may be affected by their “internal feelings,” even if such approaches may not be evidence-based.  These data can also inform the work of advocates and policymakers on how to get members of the public to “buy in” to drug sentencing reform and how to best promote public support for evidence-based sentencing laws in emerging reform efforts.

September 13, 2023 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (2)

Thursday, August 24, 2023

Intriguing Third Circuit panel ruling rejects drug quantity finding based on extrapolation

I have long been troubled by how much weight the US Sentencing Guidelines give to drug quantities in guideline calculations, in part because of how those quantities are sometimes calculated.  A recent Third Circuit panel decision provide a small window into these stories in the course of finding insufficient how federal prosecutors sought to prove up drug quantities in the sentencing of a hinky doctor.  Here is how the opinion in US v. Titus, No. 22-1516 (3d Cir. Aug 22, 2023) (available here):

Though the prosecution bears a heavy burden of proof, we will not let it cut corners.  Dr. Patrick Titus wrote thousands of prescriptions for controlled substances.  The government properly proved that many of these prescriptions were unlawful, so we will affirm Titus’s conviction.  But many other prescriptions were lawful.  And the severity of Titus’s sentence depended on how many were not.  Rather than review every patient’s file, the government urged the court to extrapolate from a small sample.  Yet the government failed to show that doing so would satisfy its burden to prove the drug quantity by a preponderance of the evidence.  Because the court sentenced Titus without enough proof, we will vacate his sentence and remand for resentencing.

August 24, 2023 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Friday, August 18, 2023

Celebrating "Drug Enforcement and Policy Center at Five Years"

I am happy to be able to note and celebrate that the OSU academic center that I helped start and help direct is no longer a toddler. As highlighted via this web-based report, the Drug Enforcement and Policy Center has now been up and running for five years.

I hope folks will take a few minutes to check out "Drug Enforcement and Policy Center at Five Years" to get just an overview of just some of the research, service work, and range of educational programs that have been part of DEPC's first five years.  I am so proud of so much of what DEPC has done, and in this space I will flag here just a very small slice of DEPC research and programming that might be of particular interest to sentencing fans:

"Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020"

"Drug Sentencing Reform in Ohio"

"When a Prison Sentence Becomes Unconstitutional"

"How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition"

"Adding Firearm Rights Restoration to the Reentry Process for Individuals Convicted of Drug Offenses in Ohio"

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

"Understanding Drug Sentencing Symposium"

"Special Symposium Issue of Federal Sentencing Reporter: Understanding Drug Sentencing"

I could go on and on, but I will just say again, check out "DEPC at 5"

August 18, 2023 in Drug Offense Sentencing | Permalink | Comments (1)

Wednesday, August 16, 2023

Back-to-school plug for Season 1 of "Drugs on the Docket" podcast

350x350bbIn this post from May, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six episodes of this first season, each running under an hour, can be accessed on Apple PodcastsGoogle Podcasts and YouTube.   Especially as law professors and law students are in "back to school" mode, I thought it might be a good time to highlight this listener-friendly (and mostly timeless) resource about the intersection of drug policies and the work of criminal courts.

As I have said before, in my (admittedly biased) view, the various curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  Over the summer, I heard positive feedback from fellow academics (both law profs and other profs), with some indicating that they are planning to incorporate some podcast content into their classes.  I am planning to encourage my 1L Criminal Law students to check out all the episodes, and I am also working with my terrific colleagues at DEPC to put together some bonus material (with Season 2 also in the works for likely release in Spring 2024).  

Once again, here is how the podcast subject matter is described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Please check it out because it makes for great back-to-school listening.

August 16, 2023 in Drug Offense Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Monday, August 14, 2023

Interesting new resource sorting through complicated realities of "drug decriminalization"

I just came across this notable report titled "Decriminalizing Drug Possession In The US: Emerging Models & Recommendations For Policy Design And Implementation."   This document, which was produced by multiple public health scholars and was funded by Johns Hopkins Bloomberg School of Public Health, seeks to unpack and assess different approaches to drug decriminalization.  Here is its executive summary:

Amid calls to address substance use as a public health issue, jurisdictions nationwide are rethinking the paradigm of criminalization for possession of drugs other than cannabis.  While decriminalization of all drugs through official legislation (de jure) has only been enacted in Oregon, many localities are leveraging prosecutorial discretion to de facto decriminalize simple drug possession.  However, the different policy provisions and implementation experiences of de facto strategies have not yet been systematically captured.  Through key informant interviews (N=22), we describe and contrast emerging models of de facto drug decriminalization (specifically, the use of prosecutorial discretion to depenalize and/or decriminalize the possession of drugs other than cannabis) in 14 jurisdictions nationally. 

Systematic thematic analysis revealed four distinct implementation models of de facto drug decriminalization: expanded diversion, substance-specific declination, case-by-case declination, and unconditional declination. Challenges and opportunities for implementation of de facto decriminalization included data availability and quality, addressing past and non-drug charges, and stakeholder and public engagement.  Key recommendations include tailoring policies to the local context, seeking multisectoral collaboration early in implementation, establishing research and evaluation partnerships, and explicitly adopting measures to improve outcomes for racial/ethnic minority and low-income communities disproportionately affected by drug enforcement.  The use of these strategies can help reduce exposure to and disparities in the carceral system, even in the absence of formal legislation.

UPDATE: Intriguingly, less than an hour after putting up this post, I saw an intriguing new headline and story on Fox News, "Vivek Ramaswamy breaks with GOP on decriminalization of hard drugs: 'I'm in that direction'."

August 14, 2023 in Booker in the Circuits, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (14)

Thursday, August 10, 2023

Former federal prosecutor describes practice of "retaliation" against drug defendants who exercise trial rights

Brett Tolman, who was appointed as the US Attorney for the District of Utah in 2006 by Prez George W. Bush, has this notable recent opinion piece at Fox News headlined "I'm a former prosecutor. The 'War on Drugs' incentivizes convictions, not justice."   The whole piece merits a full read, and I found notable that this former US Attorney so readily and clearly highlights how prosecutors impose a "trial penalty" as a form of ""retaliation" for defendants who exercise their constitutional rights to trial.  Here are excerpts:

[Alice Marie Johnson's] story was first warped during her trial by prosecutors who manipulated drug laws -- not to nab a drug "queen pin," but to pin the blame on the little guy.  As a former prosecutor, I’m peeling back the curtain on this practice and setting the record straight. 

In the early 1990s, Alice was a single mother of five struggling to make ends meet while coping with the grief of losing her son. Desperate, she became a telephone mule for a drug operation.  Her role was to pass along phone numbers within the organization, but she never once touched or sold a single drug.  Alice was wrong to participate in this operation in any capacity, something that Alice herself has owned up to on many occasions.  But what happened at her trial was a miscarriage of justice.  

When Alice was arrested along with 15 others, the prosecution offered her a deal: plead guilty in exchange for three to five years in prison.  Even three years seemed too long to be away from her family, especially given her minor role in the drug operation.  So, at the urging of her attorney, Alice chose to exercise her constitutional right to a fair and impartial trial.  

What the prosecution did next can only be described as retaliation.  It brought new drug conspiracy charges against Alice that had not been considered before, accusing her of attempted possession of 106 kilograms of cocaine.  No physical evidence was ever found to support this, but physical evidence was not required at the time. Instead, to make its case, the prosecution coerced two of Alice’s co-defendants to change their testimonies in exchange for reduced sentences, pinning the blame on Alice.... 

Today, laws are on the books to prevent convictions without physical evidence.  However, mandatory minimum sentencing laws still exist, and the "trial penalty" -- the increase in sentencing for those who choose to go to trial rather than take a plea deal – is very much alive.  Alice's trial is the perfect example of how perverse incentives within the criminal justice system, spurred by the failed "War on Drugs," ruin lives and tear families apart while doing nothing to improve public safety.

Prosecutors, many of whom go into the profession to pursue the noble ideals of justice and safety, are not immune to these warped incentives that put convictions over justice.  Drug laws are easily manipulated, and low-level players like Alice are sent to prison while higher-level, more dangerous people remain on the streets.

August 10, 2023 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (23)

Fifth Circuit panel declares unconstitutional federal prohibition on gun possession by “unlawful user” of controlled substances

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  A handful of district courts have concluded that federal law prohibiting dug possession by unlawful drug user violates the Second Amendment, and now a circuit court has joined these ranks.  Specifically, in US v. Daniels, No. 22-60596 (5th Cir. Aug. 9, 2023) (available here), a Fifth Circuit panel has decided the federal prohibition on firearm possession for “unlawful user” of a controlled substance is unconstitutional.  Here is how the opinion for the court in Daniels gets started:

Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a firearm if he is an “unlawful user” of a controlled substance. Patrick Daniels is one such “unlawful user” — he admitted to smoking marihuana multiple days per month. But the government presented no evidence that he was intoxicated at the time of arrest, nor did it identify when he last had used marihuana. Still, based on his confession to regular usage, a jury convicted Daniels of violating § 922(g)(3).

The question is whether Daniels’s conviction violates his right to bear arms.  The answer depends on whether § 922(g)(3) is consistent with our nation’s “historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply challenging question.

Throughout American history, laws have regulated the combination of guns and intoxicating substances.  But at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another.  A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War.  Section 922(g)(3) — the first federal law of its kind — was not enacted until 1968, nearly two centuries after the Second Amendment was adopted.

In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage.  Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.  As applied to Daniels, then, § 922(g)(3) violates the Second Amendment.  We reverse the judgment of conviction and render a dismissal of the indictment.

August 10, 2023 in Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (4)

Wednesday, August 02, 2023

"The 'New' Drug War"

The title of this post is the title of this notable new paper authored by Jennifer Oliva and Taleed El-Sabawi.  Here is its abstract:

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those that engage in it as deviant criminals.  The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive.  The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence.  Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year.  The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black.  Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.

The public rhetoric concerning drug use has notably changed in recent years.  Many policymakers have replaced the punitive, law and order narratives of the Old Drug War with progressive, public health-oriented language, which suggests that the Old Drug War has ended.  We, however, caution against such a conclusion.  This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.

Our assessment of these policies demonstrates that the War on Drugs is not over.  It has merely been retooled, recalibrated, and reframed.  The “New” Drug War may be concealed with public health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.

August 2, 2023 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (10)

Saturday, July 29, 2023

Another weekend round-up of all sorts of sentencing and punishment stories and commentaries

Another busy week means another really long list of press articles and commentary that caught my eye as blogworthy and yet that I did not find time to blog about.  I will seek to catch up with this round up, while hoping readers might flag any items from this list (or elsewhere) that they consider particularly important:

From CommonWealth, "It’s time to end eternal punishment for young adults: We should ban sentences of life without parole for young offenders"

From Fox News, "Dealer linked to Michael K Williams’ death sentenced to 30 months after ‘Wire’ creator’s call for leniency"

From The Guardian, "Struggling DeSantis and Pence attack criminal justice law they championed"

From The Hechinger Report, "‘A second prison’: People face hidden dead ends when they pursue a range of careers post-incarceration"

From The Hill, "Delayed justice is a hidden crisis in our federal justice system"

From the Los Angeles Times, "California’s free prison calls are repairing estranged relationships and aiding rehabilitation"

From NBC News, "Bill to ban solitary confinement in federal prisons introduced in House"

From the New York Daily News, "Advocates demand Schumer do more to end crack cocaine sentencing disparity"

From the New York Times, "We Know What Happens When We Prosecute Drug Dealers as Murderers"

From Politico, "Clarence Thomas Created a Confusing New Rule That’s Gutting Gun Laws"

From Reason, "Hunter Biden Shouldn't Go to Prison for Violating an Arbitrary Gun Law"

July 29, 2023 in Drug Offense Sentencing, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, July 18, 2023

US Sentencing Commission releases more "Quick Facts" data on wide range of topics

I have been noticing in recent weeks that the US Sentencing Commission has been releasing a lot more new short data reports in the form of its "Quick Facts" publications. (Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  Here is just a sampling of recent postings by the USSC on this  "Quick Facts" page:

There are so many notable and interesting little data items in these little documents, and I welcome folks highlighting any interesting data points in the comments.  I am eager to flag the continued drop in federal prosecutions for marijuana trafficking, as the FY 2022 shows only 806 persons being federal sentenced for this offense.  (I co-authored an article a few years ago looking at federal marijuana data, titled "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition," which noted that a decade ago nearly 7000 persons were being federal sentenced for marijuana trafficking.) 

July 18, 2023 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (1)

Monday, July 17, 2023

Debate over FIRST STEP Act safety value expansion — and whether "and" means "or" — now scheduled for first SCOTUS argument for OT23

I have noted in prior posts my excitement for the fascinating little sentencing case on the Supreme Court docket for next Term.  As flagged here, the Justices in February granted cert in Pulsifer v. United States, which raises the statutory issue of whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory-minimum safety valve actually means "and" or might instead mean "or."  As I have noted before, federal criminal justice practitioners and sentencing fans should follow Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year; statutory construction gurus should be interested in how Pulsifer addresses issues related to textualism, plain meaning and the rule of lenity.  

Now adding to my excitement is the recent release of the Supreme Court's first arguments calendar for October Term 2023.  The Justices have scheduled six arguments for the first two weeks of October, and Pulsifer is the very first of the bunch scheduled for Monday, October 2.  Being the first argument of a new SCOTUS Term seems likely to generate a little more attention for this little sentencing case, though surely there will still be a lot more focus on the case scheduled for argument on October 3 concerning the constitutionality of the Consumer Financial Protection Bureau.

A few prior related posts:

July 17, 2023 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, July 13, 2023

BJS releases big report on "Sentencing Decisions for Persons in Federal Prison for Drug Offenses, 2013–2018"

I am very excited that the Bureau of Justice Statistics has released this new special report providing details on federal drug sentences for drug offenses, though it is something of a bummer that this report only covers fiscal yearends 2013–2018.  This official BJS press release about the report provides some of its highlights:

The number of people held in Federal Bureau of Prisons’ facilities on a drug offense fell 24% from fiscal yearend 2013 (94,613) to fiscal yearend 2018 (71,555), according to Sentencing Decisions for Persons in Federal Prison for Drug Offenses, 2013–2018, a new report from the Bureau of Justice Statistics. These persons accounted for 51% of the federal prison population in 2013 and 47% in 2018. “Although the number of people in federal prison for drug offenses decreased over this 5-year span, they still accounted for a large share — almost half — of the people in BOP custody in 2018,” said Dr. Alexis Piquero, Director of BJS. “At the same time, we saw differences by the type of drug involved, with more people incarcerated for heroin and methamphetamines and fewer for marijuana and cocaine.”

Between 2013 and 2018, there were large decreases in persons serving time in federal prison for marijuana (down 61%), crack cocaine (down 45%) and powder cocaine (down 35%), with a smaller (4%) decline in persons imprisoned for opioids. These reductions were partly offset by growth in the number of persons serving time for heroin (up 13%) and methamphetamine (up 12%)....

Persons who received [mandatory minimum] penalties had been sentenced to 184 months on average, while those who received relief from penalties had an average sentence of 76 months and those not subject to penalties had an average sentence of 89 months. “Additionally, and regardless of any penalties they received, 6 in 10 people in BOP custody in 2018 were serving long drug sentences of 10 years or more,” Dr. Piquero said. “As for those sentenced to at least 20 years, more than half of the males were black and over 40% of the females were white.”

July 13, 2023 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners | Permalink | Comments (0)

Saturday, July 08, 2023

Some interesting "war on drugs" stories making headlines

I have seen a number of interesting "drug war" pieces in recent days, and I figured this round-up would provide an efficient way to spotlight some of them:

From Bezinga, "DEA Turns 50: Unveiling The Ineffectiveness Of The Ongoing War On Drugs, Now What?"

From The Hill, "Justice for all: It’s time to end the discrimination between crack and cocaine sentencing"

From The Hill, "A simple solution to save lives — and money — in the war on drugs"

From NBC News, "Costs in the war on drugs continue to soar"

From the New York Times, "U.S. Raises Pressure on China to Combat Global Fentanyl Crisis"

From Reason, "After 50 Years, the DEA Is Still Losing the War on Drugs"

From Vice News, "The War on Drugs Has Failed And It's Time to Decriminalise, Scotland Says"

From the Washington Post, "Once hailed for decriminalizing drugs, Portugal is now having doubts"

July 8, 2023 in Drug Offense Sentencing | Permalink | Comments (9)

Wednesday, July 05, 2023

Notable data on Washington state trends impacted by the pandemic and a felony drug possession law declared unconstitutional

Given robust debates over the impacts of the "war on drugs" on incarceration rates and other aspects of criminal justice systems, I found fascinating this recent press piece titled "WA felony prison and jail sentences fell by 47% in 5 years. Here’s why."  I encourage folks to check out the full article which includes and array of graphics that report on an array of data developments in The Evergreen State.  Here are some excerpts:

With the number of Washington residents headed to jail or prison at a modern low, one might expect Christie Hedman to be declaring victory.  As executive director of the Washington Defender Association, Hedman’s organization has been at the forefront of a justice reform effort keenly interested in slashing incarceration rates in the state.  Instead of celebrating the drop as a sign that reform is succeeding, though, Hedman sees it as more evidence that the system remains highly dysfunctional....

By the time the pandemic began, efforts were well underway to move Washington away from incarceration as the primary response to crime.  The calls for changes following George Floyd’s 2020 murder by a Minneapolis police officer and a 2021 state Supreme Court decision invalidating laws against drug possession fueled that shift....

The number of adults Washington courts sentenced to prison and jail on felony charges has nearly halved in the past five years.  State Caseload Forecast Council records on felony sentences provide insight into how that reduction has played out.

The drop in sentences involving incarceration stems directly from a state Supreme Court ruling that Washington’s felony drug possession law was unconstitutional.  Legislation passed earlier this year recriminalized drug possession as misdemeanor rather than a felony, but it’s unclear whether local governments, including Seattle’s, will enforce the new law.  In 2022, about 800 people were sentenced for felony drug crimes — a 66% drop compared with the previous year, and an 86% drop compared with 2020....

Nearly 95% of these sentences were for dealing, compared with 2018, before the Supreme Court decision, when 84% were for non-dealing offenses.  Last year also saw a drop in jail and prison sentences for felony property, assault and sex crimes.  Experts attribute the overall decline in incarceration to the strains on the system since the pandemic.

During the pandemic, local jails and Department of Corrections-run prisons limited their populations by restricting who was taken into custody, said Russell Brown, executive director of the Washington Association of Prosecuting Attorneys....

The average daily population of incarcerated people in Washington prisons was down 30% in 2022 compared with 2018, according to Department of Corrections data.  “So much of what you’ve seen has been a response to the system itself constricting and shutting down during this period of time,” said Hedman of the Washington Defender Association. “There are huge shortages of people wanting to be police officers, correctional officers, lawyers, whether it’s prosecutors or defense attorneys.”

The lingering effects of the pandemic will be evident across all criminal justice data for the next few years, said Lauren Peterson-Knoth, a senior researcher at the Washington Institute for Public Policy.  These constraints led prosecutors and courts to prioritize certain cases.  “The types of cases that were most likely to be processed were the crimes that were serious enough or repetitive enough that they finally had to put someone in custody,” said Brown of the prosecutor’s association.

In 2022, sentences for crimes that involved a deadly weapon, specifically firearms, increased the most in five years. This tracks with the reported increase in crimes involving firearms, said Brown, citing a King County report for 2022 showing reported shootings more than doubled compared with 2018.

July 5, 2023 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (3)

Tuesday, June 27, 2023

Rounding up some drug war stories and commentary

Yesterday was International Day against Drug Abuse and Illicit Trafficking created by the United Nations, and this press release noted that this day prompted ever more advocacy against punitive responses to drug activity: "UN experts call for end to global ‘war on drugs’."  On theme, I have seen a number of recent piece concerning the "war on drugs" in the US, and here are headlines and links:

From Cato at Liberty, "Why Are Cops in Charge of Medical Research and the Practice of Medicine?"

From Harper's Magazine, "Do Cartels Exist?: A revisionist view of the drug wars"

From The Hill, "A simple solution to save lives — and money — in the war on drugs"

From Marijuana Moment, "Chris Christie Vows To ‘End’ The Drug War If Elected President — But Only Partially"

From The New Republic, "Their Kids Died of Fentanyl Overdoses. Republicans Can’t Wait to Exploit It."

From the New York Times, "Harsh New Fentanyl Laws Ignite Debate Over How to Combat Overdose Crisis"

From Newsweek, "What If America Decriminalized All Drugs?"

June 27, 2023 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (0)

Sunday, June 11, 2023

Another plug for Season 1 of "Drugs on the Docket" podcast

350x350bbIn this post last month, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six episodes of this first season, each running under an hour, are now available on Apple PodcastsGoogle Podcasts and YouTube.   

As I have said before, in my (admittedly biased) view, the various curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  It has been particularly pleasing to have already heard a lot of positive feedback from fellow academics (both law profs and other profs), some of whom have said they are planning to incorporate the podcast content into their classes.  And, as I have also said before, because I am eager to see this podcast develop and audience (and also because my colleagues at DEPC have worked remarkably hard to put this content together), I am sure to keep using this space to encourage everyone to check out the first set of episodes.  

Once again, here is how the podcast subject matter is generally described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Please check it out because it makes for great summertime listening.

June 11, 2023 in Drug Offense Sentencing | Permalink | Comments (0)

Sunday, June 04, 2023

Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve

Though we still await opinions in a number of criminal justice cases this SCOTUS Term (which all should be decided in the next few weeks, some details here), I am already excited for the fascinating little sentencing case the Justices already have on tap for next Term.  As flagged here, the Justices in late February granted certiorari in Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FRIST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or." 

As I have noted before, federal criminal justice practitioners and sentencing fans should be following Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year.  And statutory construction gurus should also be interested in how Pulsifer addresses statutory issues related to textualism, plain meaning and the rule of lenity.  

Though SCOTUS oral argument in Pulsifer will not be scheduled until October of November, the first set of briefs were filed in the last few weeks.  Specifically, SCOTUSblog has assembled on this Pulsifer case page the merits brief filed by Mark R. Pulsifer as well as four distinct amici briefs (three in support of Pulsifer and one in support of neither party).  The briefs all make for interesting reads and reinforce my sense that Pulsifer will be a fun one at oral argument and beyond.

June 4, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 02, 2023

US Sentencing Commission releases a few updated "Quick Facts" and latest "compassionate release" data

The US Sentencing Commission has recently released some new sentencing data reports.  Long-time readers have long heard me praise the USSC for producing insightful little data documents in the form of its "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").  The USSC recent posted these four new entries:

There are so many notable and interesting little data items in these little documents, and I hope to find time to mine a few data notes in the days ahead.  In addition, the USSC's website promises "more updated Quick Facts coming soon."

In addition, the USSC also recently published this updated "Compassionate Release Data Report." This report, which has information covering from October 2019 through March 2023, includes new data on sentence reduction motions under section 3582(c)(1)(A) filed with the courts and decided during the first two quarters of fiscal year 2023. Not surprisingly, this data report shows continued month-over-month declines in the number of sentence reduction motions filed and granted since the heights of the COVID pandemic. And yet, the USSC data show that there are still more of these motions being filed and being granted in recent times than was being granted before the pandemic.

June 2, 2023 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (3)

Tuesday, May 23, 2023

Fascinating tale of a singular federal prosecution (and notable sentencing) of DC marijuana distributors

A helpful reader made sure I did not miss this new and lengthy story from the Washington Post concerning a federal prosecution and sentencing of modern marijuana offenders.  The full headline highlights some of the notable particulars: "D.C. legalized weed. A marijuana delivery service was indicted anyway.  A judge refused to hand out prison sentences and urged officials to resolve the tension between local legalization and federal prohibition."  I recommend the story, which defies easy summary in full to anyone interested in marijuana reform and prosecutorial (and judicial) decisions issues.  Here are just some snippets:

Connor Pennington always knew he would start his own business, though he wasn’t sure what type....  When nearly 65 percent of D.C. voters approved Initiative 71 in 2014, legalizing the recreational use of marijuana, the 29-year-old found “what I truly believe is my calling,” he said: distributing pot.  He named the company Joint Delivery.

Although he knew marijuana sales were illegal under federal law, Pennington created a website where customers could place orders, and he had delivery workers fan out daily in bikes or cars.  Hoping to create a professional atmosphere, he hired middle managers and a full-time accountant.  The company generated at least $4 million in sales from 2017 to 2022, according to court records....

In July 2022, Pennington, two younger brothers he had hired and five Joint Delivery managers were indicted — the first and so far only D.C. marijuana dispensary to face federal prosecution since Initiative 71 passed. In a related case, Pennington’s accountant was charged with money laundering....

“This is a strange kind of case, because the substance that’s involved is legal in many, many states now. It’s not in the federal system,” U.S. District Judge Leonie M. Brinkema said at a hearing May 2. “This disparity has got to get worked out soon because it creates a crazy situation in the law enforcement area.”

The DEA twice raided Joint Delivery’s offices in D.C. last year, finding cash, marijuana and cannabis products, according to the indictment.  All nine defendants pleaded guilty to money laundering or conspiring to distribute a dangerous substance and were ordered to forfeit the money they earned.

But they never set foot in a D.C. courthouse, and none went to prison.  The top federal prosecutor in the District, U.S. Attorney Matthew M. Graves, declined to prosecute Joint Delivery and generally does not seek charges against any of the dozens of marijuana “gifting” shops and delivery services in the city, despite occasional police raids, according to U.S. officials and defense attorneys involved in the Joint Delivery case.

Instead, all the charges against Pennington and his employees were filed by the U.S. attorney’s office for the Eastern District of Virginia (EDVA), led by Jessica D. Aber.  Prosecutors said they had jurisdiction mainly because much of the money laundering occurred in Northern Virginia.  But legal experts and the judge who handled most of the case said they were puzzled by the move, because the drug distribution that prosecutors described happened in D.C.

“I don’t think this case truly belonged here,” Brinkema said at a hearing in Alexandria federal court on Jan. 6, after chiding a prosecutor in Aber’s office for seeking a “completely inappropriate” sentence of four years and nine months in prison for one of Pennington’s shift managers, Robert Spear, who was 27 years old at the time.

The judge sentenced all of those indicted to terms of supervised release of two or three years. “It was always amazing to me that the District of Columbia, where this business essentially was, was not interested in the prosecution of this case,” Brinkema said at one of the final sentencings.

May 23, 2023 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, May 20, 2023

A (first) weekend plug for Season 1 of "Drugs on the Docket" podcast

350x350bbIn this Monday post, I flagged that the Drug Enforcement and Policy Center at The Ohio State University released Season One of a new podcast, "Drugs on the Docket."  As mentioned there, all six episodes of this first season are now available on Apple PodcastsGoogle Podcasts and YouTube.   

In my (admittedly biased) view, the various curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  And because I am quite eager to see this podcast develop and audience (and also because my colleagues at DEPC have worked remarkably hard to put this content together), I am sure to keep using this space to encourage everyone to check out the first set of episodes.  

Once again, here is how the podcast subject matter is described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Check it out, makes for great weekend listening.

May 20, 2023 in Drug Offense Sentencing | Permalink | Comments (6)

Monday, May 15, 2023

Lots of sentencing coverage as part of Season 1 of "Drugs on the Docket" podcast

Podcast artwork_for web2I am extremely pleased to highlight that the Drug Enforcement and Policy Center at The Ohio State University has now officially launched Season One of a new podcast, "Drugs on the Docket."  All six episodes of this season are available on Apple Podcasts, Google Podcasts and YouTube.  My colleagues at DEPC have worked remarkably hard to put this content together, and I hope folks find the curated discussions interesting and informative.

Here is how the podcast subject matter is described via this podcast webpage along with episode titles:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Episode 1 – Federal drug sentencing and the evolution of the crack to powder cocaine ratio with Mark Osler

Episode 2Ruan v. United States and the intersection of healthcare, criminal law, and the opioid crisis with Jenn Oliva and Kelly Gillespie

Episode 3 – A Special Conversation with former Supreme Court of Ohio Chief Justice Maureen O’Connor

Episode 4United States v. Angelos, federal mandatory minimums, and sentencing reform with Weldon Angelos and Paul Cassell

Episode 5 – Data and storytelling in federal drug sentencing and the U.S. Sentencing Commission with Doug Passon and Mark Allenbaugh

Episode 6Whren v. United States, Terry v. Ohio, and the Fourth Amendment with Gabriel “Jack” Chin

In helping with this effort, I came to realize fully just how much work is involved in podcast production.  Still, if this first season finds an audience, we may soon begin the hard work of producing another season.  And so recommendations for fitting topics and guests are welcome.

May 15, 2023 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Saturday, May 13, 2023

Latest "Relist Watch" flags yet another ACCA issue splitting circuit and likely to get SCOTUS review

In this latest Relist Watch over at SCOTUSblog,John Elwood includes a discussion of yet another issue dividing circuits concerning how to apply the Armer Career Criminal Act's severe 15-year mandatory minimum term for gun possession.  Regular readers know the wide array of technical issues SCOTUS has had to address in the application of ACCA, but this latest issue seems a bit more interesting than most.  Here are John's full descriptions (with links from the original):

[W]e have a group of three relists that raise the same issue. Brown v. United StatesJackson v. United States, and Jones v. United States all concern a single recurring issue involving the Armed Career Criminal Act, a federal sentencing enhancement provision.  The ACCA provides that someone who has been convicted of a felony and possesses a firearm is normally subject to a maximum 10-year sentence.  But if that person already has at least three “serious drug offense” convictions, then the minimum sentence — the minimum — is 15 years.  Courts decide whether a prior state conviction counts as an ACCA “serious drug offense” using a “categorical approach.”  It requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate offense.  But federal drug law often changes — as here, when Congress decriminalized hemp, narrowing the federal definition of marijuana.  If the state law doesn’t follow suit, sentencing courts face an issue: What if the state and federal offenses matched (and thus the state offense was an ACCA predicate) under an earlier version of federal law, but federal law has since been narrowed? Thus, the court’s choice of which version of federal law to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented in these three cases is: Whether the “serious drug offense” definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense, or the federal drug schedules that were in effect at the time of the prior state drug offense.  The U.S. Courts of Appeals for the 3rd, 4th, 8th, and 10th Circuit have gone with federal law at the time of the firearm offense; the U.S. Court of Appeals for the 11th Circuit has gone with federal law at the time of the prior state drug offense.

The government has told the Supreme Court that there is a circuit split on the issue and recommends that the court should grant review in Jackson, and hold Brown and Jones for that case.  I also rate Jackson a likely grant.

We should know more after the court releases its order list next Monday.

In addition to having an eye out for these ACCA cases, I am hopeful (though still not quite optimistic) that Monday's SCOTUS order list might also include some action on the long-pending acquitted conduct cases (background here).

May 13, 2023 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, April 17, 2023

US Sentencing Commission releases FY 2023 first quarter sentencing data

Today the US Sentencing Commission released on its website its latest quarterly data report which sets forth "Preliminary Fiscal Year 2023 Data Through December 31, 2022."  These new data provide the latest accounting of how the COVID era continues to echo through federal sentencing.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be just over 15,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases primarily accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 10 quarters of offiical USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  In this most recent quarter, the official data show that only 42.2% of all federal sentences are imposed "Within Guideline Range."  This number is not an historic low, but it continues the modern statistical reality that now more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

There are a lot of interesting data and stories to mine from the last USSC data report, but for some reaosn I was especially struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest quarter, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencingcaseload than powder and crack cocaine, heroin and fentanyl combined.  Morever, the average sentence for all those meth cases is over eight years in prison, whereas the average for all the others is under six years.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, the meth defendants than anyone else. 

April 17, 2023 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (2)

Wednesday, March 15, 2023

USSC publishes 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics

Via email this morning, I learned that the US Sentencing Commission published on its website today its 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics.  Both data-rich publications have lots of interesting statistics providing lots of interesting views of the realities of (fiscal year) 2022 federal sentencing.  The email I received from the USSC flagged these "FY22 Fast Facts":

The Sourcebook presents information on the 64,142 federal offenders sentenced in FY22 (October 1, 2021 through September 30, 2022) — a sentencing caseload that increased by 6,855 from the previous fiscal year.

  • Drug trafficking, immigration, firearms, and fraud crimes together comprised 82% of the federal sentencing caseload in FY22.  

  • Methamphetamine continued to be the most common drug type in the federal system (49% in FY22).

    • The portion of drug cases involving fentanyl increased markedly over the last year, such that fentanyl cases were the third most common among all drug cases. 
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (94 months, representing an increase of 4 months from the previous year).

    • 65% of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding relatively steady from the previous year.

March 15, 2023 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Monday, March 13, 2023

Last chance to register for "Drugs and Public Safety: Exploring the Impact of Policy, Policing and Prosecutorial Reforms"

In part because I have been busy helping with some of the activities, I keep forgetting to promote here this exciting event taking place in Arizona later this week.  Here are the basics with a last-minute, last chance to register:

The Drug Enforcement and Policy Center at the Moritz College of Law at The Ohio State University and the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University invite you to join us for a symposium titled Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms Thursday, March 16, 2023, from 8 a.m. to 4 p.m. MST, to examine the public safety impact of marijuana and other modern drug policy reforms. Registration closes at midnight tonight.
  
As marijuana reforms have spread, so too has discussion of broader drug reforms such as decriminalization or legalization at both state and local levels, as well as relief from drug-war excesses through clemency and expungement.  But given the increasing concern about violent crime, many advocates and lawmakers are wondering whether past and possible future drug policy reforms may be advancing or undermining the broad interest in creating safe and stable communities.  As the country moves away from marijuana prohibition, a fully informed discussion of drugs, violence, and public safety is needed now more than ever. 

This conference is committed to exploring, from a variety of perspectives and with the help of a variety of voices, how to better understand and assess the relationship between drug reforms and public safety.

For more information, visit this link, and to register visit this link (by midnight Monday, March 13, 2023). There is no fee to attend. 

March 13, 2023 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (0)

Monday, March 06, 2023

US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

As first flagged in this post a couple of weeks ago, for sentencing fans looking for binge-worthy viewing and reading, the U.S. Sentencing Commission is still in the midst of its series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The first hearings, which took place on February 23 and 24, can still be watched in full via the now-achieved live-streamed recording at this link.  That link also has all the witness written testimony for a full 25 witnesses for the first two days of public hearings where "the Commission [received] testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

The second set of hearing as this week, taking place on  March 7 and 8, and the link here where folks can live-stream all the action explains that the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."  For these two days, it appears that there is again another 25 witnesses scheduled to testify on all these topics, and it appears that all their written testimony is already linked.   And again, the Commission will be engaging with a bunch of big policy questions along with lots and lots of (consequential) guideline technicalities. 

Among the many reasons the Commission has such a challenging job, on one issue they have to work with (or around) a recent Supreme Court cert grant.  As the Commission has rightly noted in proposed amendments, the FIRST STEP Act's new safety-valve provision for sentencing in drug cases ought to be incorporated into the the guidelines in some way.  But the circuit courts are deeply divided on the interpretation of that statutory provision, which produced, as noted here, the SCOTUS cert grant in was Pulsifer v. United States.  But that case will not be argued until this coming fall, and very likely will not result in a SCOTUS ruling until probably Spring 2024.  The Commission can amend the guideline before and/or after the SCOTUS ruling, but should it try to guess where SCOTUS will go or instead try to now develop a guideline that can function independent from the statutory debate.

A few recent related posts:

March 6, 2023 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, February 22, 2023

Fourth Circuit panel joins minority of circuits giving broad reading to FIRST-STEP-amended safety valve provision

I have noted in a handful of prior posts some of the notable circuit rulings concerning the complicated language that Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  A helpful reader made sure I did not miss the latest opinion on this topic, this one coming from a Fourth Circuit panel in US v. Jones, No. 21-4605 (4th Cir. Feb 21, 2023) (available here).  Here is how the opinion starts and concludes:

The safety valve provision found in the First Step Act allows a district court to impose a sentence without regard to a mandatory minimum if certain criteria are met.  Relevant here, the court must find that the defendant “does not have . . . more than 4 criminal history points, . . . a prior 3-point offense, . . . and a prior 2-point violent offense” (the “criminal history characteristics”). 18 U.S.C. § 3553(f)(1) (emphasis added).  Cassity Jones has more than four criminal history points but does not have a prior three-point offense or two-point violent offense.  The district court concluded that a defendant must have all three criminal history characteristics to be ineligible for relief and applied the safety valve in sentencing Jones.  The sole issue on appeal is whether the word “and” in § 3553(f)(1) connecting the criminal history characteristics applies conjunctively or disjunctively.  We conclude that “and” is conjunctive and affirm the district court’s decision....

Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch.  And “[t]he [G]overnment’s request that we rewrite § 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences.” Lopez, 998 F.3d at 440.  We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants. Id. “The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982); see also id. (“Congress may amend the statute; we may not.” (citations omitted)).

Accordingly, we are persuaded that the plain text of § 3553(f)(1) requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from safety valve eligibility.

Helpfully, a footnote early in the opinion details the circuit split over whether "and" means "and" or "and" means "or" in the context of this FIRST STEP Act revision of the application statute:

The circuits are split on this issue.  Compare United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (concluding that only a defendant with all three criminal history characteristics is ineligible under § 3553(f)(1)), and United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (same), with United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (concluding that having any one of the criminal history characteristics renders a defendant ineligible under § 3553(f)(1)), United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (same), United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (same), and United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022) (same). We find the Eleventh and Ninth Circuits’ decisions convincing and join those circuits.

This split make plain that it is only a matter of time before SCOTUS takes up this matter. And I would hope that SCOTUS would move quickly: according to US Sentencing Commission data, thousands of federal drug defendants each year are being subject to different laws and treated differently at sentencing based on this statutory conflict.

February 22, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, February 18, 2023

Renewed bipartisan effort to end the federal crack/powder sentencing disparity via the EQUAL Act

During the last Congress, I became way too optimistic about the prospect of passage of the EQUAL Act to entirely eliminate the federal crack and powder cocaine sentencing disparity. But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act and after the Senate version secured 11 GOP sponsors, I really thought nearly four decades of a misguided sentencing structure could be coming to an end.  But, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden. 

I am now inclined to be much less optimistic about the EQUAL Act's chance in the new Congress.  But I am still pleased to see bipartisan efforts continuing, as evidenced by this new press release from Senator Cory Booker.  Here are some details:

Today, U.S. Senators Cory Booker (D-NJ), chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, and Dick Durbin (D-IL), chair of the Senate Judiciary Committee, along with Representatives Kelly Armstrong (R-ND) and Hakeem Jeffries (D-NY), the House Democratic Leader, announced the reintroduction of the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, legislation to eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced. 

Joining Booker and Durbin as original cosponsors on the EQUAL Act in the Senate are Senators Lindsey Graham (R-SC), the ranking member of the Senate Judiciary Committee, Thom Tillis (R-NC), Chris Coons (D-DE), Cynthia Lummis (R-WY), and Rand Paul (R-KY).  Joining Armstrong (R-ND) and Jeffries (D-NY) as original cosponsors on the EQUAL Act in the House are Representatives Don Bacon (R-NE) and Bobby Scott (D-VA).

The sentencing disparity between crack and powdered cocaine, at one point as high as 100 to 1, helped fuel the mass incarceration epidemic.  According to the U.S. Sentencing Commission, in Fiscal Year 2021, 77.6% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic....

"Eliminating the crack-powder cocaine sentencing disparity is a step toward applying equal justice under the law,” said Representative Armstrong. “The EQUAL Act is sound, bipartisan criminal justice reform, that received overwhelming support in the House last Congress. It’s long overdue that we pass this bill and finally end the disparity to make a real difference for families across the nation.”...

Background

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

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the crack and powder cocaine sentencing disparity from 100:1 to 18:1.  In 2018, Senators Booker and Durbin and Representative Jeffries were instrumental in crafting the First Step Act, which made the Fair Sentencing Act retroactive. 

Booker, Durbin, Armstrong, and Jeffries first introduced the EQUAL Act to eliminate the disparity once and for all in 2021.  In September 2021, the legislation passed the House with a wide bipartisan margin, 361-66.  In the Senate, the legislation ultimately attracted 11 Republican and 24 Democratic cosponsors.

The full text of the legislation can be viewed here.

A few of many prior posts on the EQUAL Act:

February 18, 2023 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (25)

Saturday, February 11, 2023

New CRS explores "When Is a Mandatory Minimum Sentence Not Mandatory Under the First Step Act?"

The Congressional Research Service has this notable new "Legal Sidebar" discussing how the statutory "safety valve" allowing sentences below federal mandatory minimum terms operate.  The four-page document highlights the new legal debates resulting from FIRST STEP Act reforms, and here are excerpts:

Congress created the safety valve for certain drug offenses carrying mandatory minimum penalties after becoming concerned that the mandatory minimums could result in equally severe penalties for both more and less culpable offenders.  The Commission “worked directly with Congress to enact new legislation that would address the impact of mandatory minimum penalties on low-level drug-trafficking offenders.”  These efforts culminated in the first safety valve, which was introduced as part of the Violent Crime Control and Law Enforcement Act of 1994.  Under this statute, to be eligible for the safety valve, a federal judge could impose a sentence below a drug-related mandatory minimum if the federal defendant satisfied five criteria, including not having “more than one criminal history point, as determined under the Sentencing Guidelines.”... The Commission adopted a corresponding Sentencing Guideline provision, allowing for a two-level reduction in the Guidelines offense level based on the same 1994 criteria.

In 2011, the Commission reported to Congress that the safety valve was underinclusive.  The Commission therefore urged Congress to expand the safety valve to encompass “certain non-violent [drug] offenders who receive two, or perhaps three, criminal history points under the [G]uidelines” and “low-level, nonviolent offenders convicted of other offenses carrying mandatory minimum penalties.”...

The First Step Act addressed mandatory minimums in multiple ways.  In addition to reducing the mandatory minimum penalties for certain drug-trafficking offenses, the act expanded eligibility for safety-valve relief to defendants with more significant criminal histories.  Whereas federal defendants with one or zero criminal history points under the Sentencing Guidelines could receive relief under the prior law, the act made drug offenders with minor criminal records eligible for the safety valve provision....

Due to the current judicial divide over the scope of the First Step Act’s safety valve, whether a defendant may receive relief from a mandatory minimum sentence under the act may depend upon the happenstance of geography: a defendant may be disqualified in one circuit when that same defendant might be eligible for relief in a different circuit.  Given that sentencing disparities may appear at odds with the stated statutory policy of promoting consistency and uniformity in federal sentencing outcomes, Congress may wish to consider amending the safety valve to clarify whether the criminal history criteria are disjunctive or conjunctive.

In addition, the Sentencing Commission is exploring revisions to the Sentencing Guideline provision that is analogous to the act’s safety valve: the Commission identified two options under consideration.  One option would not make any change to the Guidelines and thus would permit courts to interpret the Guideline disjunctively or conjunctively.  A second option would adopt the disjunctive approach.  Regardless of which option the Commission approves, Congress always has the opportunity to review and revise any amendments to the Guidelines.

February 11, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes | Permalink | Comments (0)

Tuesday, February 07, 2023

Pre-gaming the State of the Union with a few White House Fact Sheets talking a bit about crimes and punishment

I may not get a chance to watch Prez Biden's State of the Union address tonight, and I am not really expecting it will cover any big sentencing issues (or small sentencing issues for that matter).  That said, I do expect some crime and punishment matters to get some air time during a speech that likely will make some mention of policing practices and the nation's drug overdose problems.  And my expectations have already been somewhat confirmed even hours before the SotU speech via these releases from the White House:

FACT SHEET: The Biden-⁠Harris Administration’s Work to Make Our Communities Safer and Advance Effective, Accountable Policing

FACT SHEET: In State of the Union, President Biden to Outline Vision to Advance Progress on Unity Agenda in Year Ahead

Here are some items pulled from these "fact sheets" — which, I must say, do not actually read as "fact sheets — that may be of particular interest to sentencing fans:

Investing in Crime Prevention. The President’s Safer America Plan calls on Congress to invest $15 billion in services that help prevent crime from occurring in the first place, including: mental health and substance use disorder services, such as co-responder and alternative responder programs where social workers and other professionals respond to calls that should not be the responsibility of law enforcement; job training and employment opportunities, including for teenagers and young adults; housing and other supportive social services to individuals who are homeless; and reentry services so people leaving prison can stabilize their lives and avoid recidivism.  The Plan also incentivizes the reform of laws that increase incarceration without reducing public safety and lift almost all federal restrictions on eligibility for vital benefits (such as food, income, and disability-based assistance) for people with prior convictions....

Addressing a failed approach to marijuana and crack cocaine. The criminalization of marijuana possession has upended too many lives — for conduct that is now legal in many states. While white, Black and brown people use marijuana at similar rates, Black and brown people are disproportionately in jail for it. In October 2022, the President announced a full, unconditional, and categorical pardon for prior federal simple marijuana possession offenses.  This pardon lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession.  The President also called on every state governor to follow his lead, as most marijuana prosecutions take place at the state level.  And because this Administration is guided by science and evidence, he called on the Secretary of HHS and the Attorney General to review how marijuana is scheduled under federal law.

In addition, the Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.  As an initial step, the Attorney General has issued guidance to federal prosecutors on steps they should take to promote the equivalent treatment of crack and powder cocaine offenses, but Congress still needs to act....

Beating the Opioid and Overdose Epidemic by Accelerating the Crackdown on Fentanyl Trafficking and Public Health Efforts to Save Lives
Last year, President Biden announced his plan to beat the opioid epidemic as part of his Unity Agenda, because opioid use and trafficking affect families in red communities and blue communities and every community in between.  Under President Biden’s leadership, overdose deaths and poisonings have decreased for five months in a row — but these deaths remain unacceptably high and are primarily caused by fentanyl....  [T]he President will announce in the State of Union that his administration will:...

  • Work with Congress to make permanent tough penalties on suppliers of fentanyl.  The federal government regulates illicitly produced fentanyl analogues and related substances as Schedule I drugs, meaning they are subject to strict regulations and criminal penalties.  But traffickers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” (FRS) — to evade regulation and enhance the drug’s impact.  The DEA and Congress temporarily closed this loophole by making all FRS Schedule I.  The Administration looks forward to working with Congress on its comprehensive proposal to permanently schedule all illicitly produced FRS into Schedule I.  Traffickers of these deadly substances must face the penalties they deserve, no matter how they adjust their drugs.

February 7, 2023 in Criminal justice in the Biden Administration, Drug Offense Sentencing, Who Sentences | Permalink | Comments (9)

Saturday, February 04, 2023

Federal judge gives cocaine trafficker time served ... and a requirement that she complete her JD program

Here is another notable sentencing story that might keep the comments buzzing  This one comes from the ABA Journal under the headline "Federal sentence includes law school, and attorneys wonder why."  Here are the basics (with links from the original):

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences.  However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint.  She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years.  In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release.  The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member.  A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse....

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests....

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer.  The PAO said the office did not object to the sentence. Richard Gould, a federal public defender, represented Madill.  A receptionist at the Southern District of Texas Federal Public Defender’s Office told the ABA Journal Gould does not speak to reporters....

The sentence is unique, says Michael Heiskell, a Texas attorney and president-elect of the National Association of Criminal Defense Lawyers. Indeed, being a law student could have resulted in a longer sentence if the court was persuaded a defendant’s legal education helped them commit the crime, he adds.

“Kudos to her and her counsel for being able to convince the court to do this. Hopefully, this gives her the motivation to complete her JD. Maybe her story resonated with the judge since he is obviously an attorney,” says Heiskell, a former state and federal prosecutor who does criminal defense work.

According to Heiskell, credit for time served is unusual in drug cases involving delivery, and the sentencing range for Madill’s conviction is between 87 and 108 months.  He adds that a purpose of the federal sentencing guidelines is to avoid disparities, so Madill’s sentence may be useful for defendants with cases similar to hers.  “You would want to make the argument of the courts being consistent in its sentencing for cases such as this. If I had a situation where my client was learning to be a plumber, electrician, etc., I would cite this case,” Heiskell says.

The ABA Journal reporter called me about this  case; I mentioned that, given that the plea was entered in 2019 and then the sentence was not imposed until 2023, it seems quite likely the defendant provided some cooperation in exchange for a reduced sentence. The article does not quote me on that point, but does highlight some of my other speculations for the very special law-school-completion condition of supervision.

For those so interested, here is the exact language in the sentencing entry from Chief Judge Crane: "You must continue to participate and complete an educational program designed to receive a Doctor of Jurisprudence degree." I joked to the ABA Journal reporter that, in some quarters, this condition might be viewed as "cruel and unusual punishment." That quote also did not make the article,  But now that the piece is published, I am eager to hear reactions to this very lawyerly federal sentence.

February 4, 2023 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (11)

Friday, February 03, 2023

Notable new grant of sentence reduction for California medical marijuana operator given nearly 22 years in federal prison back in 2008

I was pleased to learn late last night about a notable new ruling out of a federal district court in US  v. Scarmazzo, No. 1:06-cr-000342 DAD (E.D. Ca. Feb 2, 2023) (available for download below).  The case involves Luke Scarmazzo, a California medical marijuana dispensary operator who was federally prosecuted in the mid-2000s and was sentenced to 262 months in federal prison back in 2008.  As detailed in the 29-page opinion posted below, the federal district judge decision to reduce his sentence to time served (already more than 14 years).  The who sentence merits a full read for a host of reasons, and here are just a few key concluding passages: 

Having considered the parties’ briefing and reviewed the relevant case law, the undersigned’s current view is as follows.  This court clearly has the authority to reduce a mandatory minimum sentence in granting compassionate release.  Halvon 26 F.4th at 570. However, where, as here, the minimum mandatory sentence is still authorized by Congressionally enacted federal law that has not been subsequently subject to even non-retroactive amendment, the district court should not grant compassionate release based solely upon its conclusion that the originally imposed mandatory minimum sentence was unduly harsh.  See Thacker, 4 F.4th 569, 574. Nonetheless, this court has broad discretion to consider the harshness of the sentence in light of the current landscape in combination with other factors in determining whether extraordinary and compelling circumstances warrant the granting of compassionate release in a given case. Concepcion, 142 S. Ct. at 2396; Chen, 48 F.4th at 1095; Aruda, 993 F.3d at 802; Jones, 980 F.3d at 1111....

When considering the unique confluence of all of these circumstances — changes in the legal landscape with respect to federal enforcement of laws relating to distribution of marijuana in California; the significant disparity in the sentence actually served by co-defendant Montes and the 14+ years already served in prison by defendant Scarmazzo; defendant’s good behavior, meaningful employment, volunteer work, pursuit of educational opportunities during his imprisonment; defendant’s solid release plans including job offers and family support; the lack of danger posed to the community were he to be released; and defendant Scarmazzo’s difficult family circumstances that have developed during his imprisonment — the court is persuaded that the granting of the requested relief is appropriate at this point and is supported by both extraordinary and compelling circumstances and consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a).

Download CR opinion in Scarmazzo case

February 3, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, January 26, 2023

New year and new Congress brings a new effort to advance new EQUAL Act

Regular readers likely recall some of my posts over the last two years about the EQUAL Act, a bill to reform federal crack cocaine sentencing by finally treating crack and powder cocaine the same at sentencing.  In short form, passage of the bill looked somewhat likely when the US House of Representatives passed it overwhelmingly in September 2021; but, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden.  And, as detailed in this post, a lame-duck session compromise bill to the finish line.

Of course, the start of 2023 means a new Congress, so there needs to be a new version of the EQUAL Act introduced.  Interestingly, as this new FAMM press release highlights, there is already a "coalition of law enforcement, justice reform, and civil rights organizations urg[ing] Congress to pass the EQUAL Act" even before a new version has been formally introduced.  As the press release explains: "Today, FAMM along with 20 additional organizations sent a letter to Sens. Dick Durbin and Lindsey Graham (the Chair and Ranking Member of the Senate Judiciary Committee, respectively) urging them to schedule a markup for the EQUAL Act as soon as it is reintroduced this Congress."  Here are parts of the letter:

We write today to urge you to schedule a mark-up for the EQUAL Act as soon as it is reintroduced. We believe that moving the bill early this year will help prevent the same disappointing fate the bill suffered last Congress....

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Notably, but not surprisingly, this letter to Congress makes no mention of the fact that, as discussed here, US Attorney General Garland released last month new federal charging guidelines that including instructions to federal prosecutors to treat crack like powder cocaine at sentencing.  Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistance to reform as we saw late last year.  Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.

A few of many prior posts on the EQUAL Act:

January 26, 2023 in Drug Offense Sentencing, New crack statute and the FSA's impact, Who Sentences | Permalink | Comments (2)

Friday, January 13, 2023

Outgoing Pennsylvania Gov included high-profile artist in final batch of record-setting clemency grants

Pennsylvania Governor Tom Wolf has only a few more days in office, and he is closing out a tenure that has been record setting in the use of clemency authority.  This local article discusses that record as well as the high-profile clemency recipent in the last batch of grants:

Pennsylvania Governor Tom Wolf has pardoned Philadelphia rapper Meek Mill of his possession of drugs and weapons charges from 2008....

Wolf has issued more than twice the amount of pardons granted by any of his predecessors, with at least a quarter of them targeting non-violent marijuana offenses, his administration announced Thursday.

Wolf, a Democrat, signed his final 369 pardons this week, for a total of 2,540 since he took office in 2015. He surpassed Democratic Gov. Ed Rendell's record of 1,122 granted pardons. Of the pardons, 395 were part of the expedited review process for nonviolent marijuana-related offenses. Another 232 were part of the PA Marijuana Pardon Project, which accepted applications through the month of September.

"I have taken this process very seriously - reviewing and giving careful thought to each and every one of these 2,540 pardons and the lives they will impact," Wolf said in a statement. "Every single one of the Pennsylvanians who made it through the process truly deserves their second chance, and it's been my honor to grant it."

A pardon grants total forgiveness of the related criminal conviction and allows for expungement.

January 13, 2023 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, January 10, 2023

US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

Cover_mj-possession-2023This morning, the US Sentencing Commission has released this interesting new report titled "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System."  This USSC webpage provides this summary and key findings:

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects.  Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014.  The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types.

Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses.  The report identifies how many federal offenders sentenced in fiscal year 2021 — for any crime type — received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences.  The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Key Findings

Federal Sentencings for Simple Possession of Marijuana

  • The number of federal offenders sentenced for simple possession of marijuana is relatively small and has been declining steadily from 2,172 in fiscal year 2014 to only 145 in fiscal year 2021.
  • The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014.  As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern.
  • Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%).  A little over two-thirds (70.1%) were sentenced to prison; the average prison sentence imposed was five months.
  • As of January 2022, no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons.

Impact of Prior Sentences for Simple Possession of Marijuana

  • In fiscal year 2021, 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences.  Most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences.  Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points.
  • The criminal history points assigned under the federal sentencing guidelines for prior marijuana possession sentences resulted in a higher criminal history category for 1,765 of the 4,405 offenders (40.1%).
  • Of the 1,765 offenders whose criminal history category was impacted by a prior marijuana possession sentence, most were male (94.2%), U.S. citizens (80.0%), and either Black (41.7%) or Hispanic (40.1%).
  • Nearly all (97.0%) of the prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof.  Prior sentences for marijuana possession from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.

January 10, 2023 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (33)

Wednesday, December 28, 2022

Notable ruling on meth sentencing guidelines by a notable federal sentencing judge

A helpful colleague made sure I did not miss a notable little new ruling from federal judge in Mississippi in US v. Robinson, No. 3:21-CR-14-CWR-FKB-2 (S.D. Miss. Dec. 23, 2022) (available here).  The ruling addresses the calculation of the federal sentencing guideline range in meth cases, and here are some excerpts (with lots of cites omitted):

The issue is fairly straightforward. The U.S. Sentencing Guidelines use drug purity as a proxy for a defendant’s culpability....  As a result, the Guidelines make a distinction between “methamphetamine” and “actual methamphetamine.”   All else equal, defendants caught with actual methamphetamine get longer sentences than defendants caught with methamphetamine mixture....

The distinction is significant to Mr. Robinson.  Because he possessed 214.4 grams of especially pure methamphetamine, the Guidelines indicate that he should have a “base offense level” of 32.  In contrast, if Mr. Robinson was deemed to have possessed 214.4 grams of methamphetamine mixture, the Guidelines indicate that his base offense level would be 26....

At the outset, the Court appreciates the parties for pointing to Judge Bennett’s decision in United States v. Nawanna, 321 F. Supp. 3d 943 (N.D. Iowa 2018).  In that case, the United States conceded that there is no empirical basis for the Sentencing Commission’s 10-to-1 weight disparity between actual methamphetamine and methamphetamine mixture. Other courts have found the same....

On review, the undersigned agrees with these colleagues.  The Guidelines use drug purity as a proxy for culpability.  But national experience suggests that is no longer true for methamphetamine.  The DEA data show that most methamphetamine confiscated today is “pure” regardless of whether the defendant is a kingpin or a low-level addict....

Given the on-the-ground reality in methamphetamine cases, the better way to determine culpability is to examine all of the circumstances of the defendant’s case and life -- seeing the defendant as a “whole person,” as the Supreme Court just instructed in Concepcion. 142 S. Ct. at 2395.  There are sentencing enhancements available for leaders, organizers, or managers of criminal enterprises.  If the defendant’s case warrants, those enhancements should be applied.  In the context of methamphetamine, though, purity is no longer probative of the defendant’s culpability.

This ruling is notable on its own terms, but it seemed especially blogworthy because of the opinion's author: US District Judge Carlton W. Reeves. Judge Reeves, as some readers likely know, is the new Chair of the US Sentencing Commission.

December 28, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Wednesday, December 21, 2022

Lots of new data and a notable date from the US Sentencing Commission

The US Sentencing Commission yesterday published two new data reports: (1) this updated compassionate release data report and (2) this FY 2022 fourth quarter sentencing data.  There are lots of stories within all these data, though I still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate.  On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five years.  But, of course, we now have a fully loaded Commission, and the Commissions are clearly hard at work on guidelines reforms.  We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

December 21, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (0)