Sentencing Law and Policy

Different perspectives one year after Measure 110 took effect decriminalizing low-level drug possession in Oregon

Via an email with this press release from the Drug Policy Alliance, I received a reminder that today marks one year since the effective data of Measure 110, Oregon's ballot initiative decriminalizing personal possession of all drugs.  The DPA release suggests there is much to celebrate on this anniversary:

While the robust support infrastructure is still getting off the ground, early results show over 16,000 people have already been able to access services. Additionally, there has been a nearly 60% decrease in the amount of people who have been arrested for any drug offense (approximately 3,700 drug offense arrests in the first 10 months after decriminalization took effect compared to over 9,100 arrests in the same 10-month period of 2020....

According to the first round of data from the Oregon Health Authority (based on grant reports from the Access to Care grants that went out last spring and summer — representing the initial $31.4 million previously mentioned — to 67 organizations and 11 tribes and tribal organizations), the funding has been used to:

• Provide grant funding to 67 harm reduction, treatment, housing, peer support and recovery organizations across 29 counties
• Provide funding to 11 Tribes and Tribal organizations through Tribal set aside
• Provide services to 16,000 people, 60% of which engaged with harm reduction services
• Hire 115 staff to provide a variety of health, harm reduction, treatment, housing and recovery services
• Purchase 12 vehicles to provide mobile health and harm reduction services
• Purchase three housing units - one motel, one duplex, and one gender and culturally-specific recovery house, plus 10 tiny houses
• Secure four leases on new facilities
• Purchase 154,535 harm reduction supplies
• Pay for four 24-hour peer support and crisis phone lines

This Filter article reports on the one-year anniversary in a somewhat similar vein under the headline "One Year on, Oregon Drug Decriminalization Is Boosting Harm Reduction and Housing":

Housing is another particularly important need that Measure 110 is helping to address. “Not everyone’s going to get into residential treatment and not everyone needs residential treatment,” [Tera Hurst, executive director of the Health Justice Recovery Alliance] said. “Some people actually have better outcomes if you’re able to house them in their community and offer these ‘wraparound’ services.” 

Hurst acknowledged Oregon’s huge task of setting up the behavioral health resource network in 2022.  But advocates like her are also on the defensive — already, state lawmakers are making plans to take money allocated for expanding services and spend it instead on more police.

Challenges and battles remain, therefore.  But thousands of people in Oregon, whether receiving services or avoiding arrest, have already felt benefits from Measure 110. And with major funding soon to be rolled out, many more positive impacts are expected in 2022.

But some other media sources have a somewhat different perspectives on how things are going in Oregon.  This local press piece, headlined "As Meth and Fentanyl Tighten Their Grips on Oregon, the State Scrambles to Implement Treatment Services: Measure 110 will provide a massive infusion of new money but overdose deaths are skyrocketing," provides some sobering statistics:

The good news, Oregon State Medical Examiner Dr. Sean Hurst recently told lawmakers, is that the jump in Oregon’s alcohol-related deaths in 2020 flattened in the first half of 2021. The bad news: Drug overdose deaths, particularly those involving fentanyl and methamphetamine, soared to new highs.

Deaths attributable to meth jumped from 2019 to 2020, and are on pace for a bigger increase in 2021, Hurst told lawmakers Jan. 13. Though slightly less numerous, fentanyl-related deaths are rising much faster: They more than doubled from 2019 to 2020 and are on pace to rise steeply in 2021.  Together, medical examiner figures show, the two drugs will account for the deaths of more than 1,000 Oregonians in 2021 — that’s nearly three per day. “Substance use disorder is prevalent and it’s everywhere,” says Tony Vezina, chairman of the Oregon Alcohol and Drug Policy Commission.

Hurst presented his dismal news on drug deaths as the state races to implement Measure 110, the 2020 ballot measure that forced two major policy shifts.  It decriminalized the possession for personal use of many hard drugs, including heroin, meth, cocaine and some opioids. Measure 110 also shifted funding from Oregon’s cannabis taxes — well over $100 million a year — to fund new referral and treatment services for substance use disorder....

The idea was that those cited for possession could avoid a fine by calling a phone number on their ticket; that connection would open a gateway to evaluation and services—and get up to $100 of their fine waived. Data collected by the Oregon Judicial Department from February 2021 through Dec. 31, however, shows that avenue has not worked. Police wrote 1,826 tickets last year for hard drugs (nearly two-thirds for meth) but few — only 55 for the whole year — prompted users to telephone the number for services.

Advocates of Measure 110 say it will take time for the benefits to become apparent, as was the case in Portugal, which decriminalized hard drugs in 2001 and saw its overdose death rate plummet — but only after services were in place.

Tera Hurst, executive director of the Oregon Health Justice Recovery Alliance (and no relation to the medical examiner), says voters signaled they wanted an explicit shift away from treating people with substance use disorders as criminals and to instead direct energy and money toward treatment.  She says it’s unsurprising that citations are not driving drug users to seek help. She and other advocates did not expect they would. Even arrests rarely motivated users to seek treatment, they say — most go only when they are ready.

This other local press stories also set forth distinct perspectives on drug-related challenges in the Beaver State:

"Oregon is No. 2 in nation for addiction, last on access to treatment"

"Oregon’s drug decriminalization measure fails to fund treatment"

"Child Pornography and Criminal Justice Reform"

The title of this post is the title of this notable new article now available via SSRN and authored by Dawinder Sidhu and Kelsey Robinson. Here is its abstract:

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason.  The defining attributes of prevailing drug policy — severe and disproportionate penalties owning to a retributive, factually flawed, and hurried congressional process — apply to the child pornography context as well.  In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion to vary under Kimbrough v. United States.

Though drug sentencing is problematic enough, child pornography is arguably worse.  The U.S. Sentencing Commission has disavowed these guidelines and invited judges to vary from them.  Judges have done just that, varying in 63% of all cases, more than any other offense type.  Thus, in this Article, we also suggest how the improvements to this uniquely distressed area of law can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.

Child pornography is not part of the conversation for criminal justice reform.  We take on child pornography sentencing, and in doing so hope to ensure that the movement for criminal justice reform is both correct and complete.

SCOTUS to hear argument over terms of crack offense resentencing under FIRST STEP Act

The Supreme Court will be hearing oral argument on Wednesday morning in Concepcion v. US, No. 20-1650, which presents the following sentencing issue as phrased by the petitioner in this brief:

Whether, when deciding if it should “impose a reduced sentence” on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

The Government articulates the issues somewhat differently in its brief:

Whether a district court is required to consider all legal and factual developments occurring after an offender’s original sentencing — whether or not related to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 — in connection with a motion for a reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5222.

I was happy to be able to join this law professors' amicus brief which stresses the centrality of the 3553(a) factors at federal sentencing, which calls for analysis of all relevant considerations at initial sentencings and at any resentencings.

How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?

On MLK day, I have a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King, which always delivers and always has its own unique power each and every listen.  In recent years, I have also used this day to explore Stanford University's awesome collection of MLK Papers; in posts linked below, I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But this recent news item from Wyoming has me today focused on a specific policy ask for advancing freedom and racial justice:

U.S. Sen. Cynthia Lummis, R-Wyo., became the seventh Republican co-sponsor of the EQUAL Act on Friday, which would fully and finally eliminate the federal sentencing disparity between crack and powder cocaine.

The two substances are virtually identical and equally dangerous, and yet crack carries a penalty that is 18 times that of powder cocaine, according to a news release. The bill passed in the House of Representatives by a margin of 361-66, including 143 Republicans.

Lummis joined Republican Sens. Rob Portman, R-Ohio; Rand Paul, R-Ky.; Thom Tillis, R-N.C.; Lindsey Graham, R-S.C.; Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, as co-sponsors. Advocates from across the political spectrum said the addition of Lummis is a clear indication that the EQUAL Act has the momentum needed to pass the Senate....

The EQUAL Act has support from groups across the political spectrum, including the Major Cities Chiefs Association, National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Faith and Freedom Coalition, ALEC Action, R Street Institute, FreedomWorks and Taxpayers Protection Alliance.

With seven notable and diverse GOP senators serving now serving as co-sponsors for the EQUAL Act, I have to believe this bill could easily overcome any filibuster efforts and secure passage on the floor of the Senate (likely by the 5 to 1 margin that it secured passage in the House).  So why is this not getting done ASAP?  To its credit, the Biden Administration has testified in support of the EQUAL Act in the US Senate, but I have not heard Prez Biden himself (or VP Harris) lean into this issue at all.  (Notably, if they want to focus on voting rights as a focal point for civil rights advocacy, they might also really advance the MLK legacy by taking on felony disenfranchisement.  Moreover, they should try to get bipartisan bills like the EQUAL Act passed into law so that people who care about criminal justice reform can better understand why they should bother to vote at all.)  

In part because US Sentencing Commission data reveal that "only" 1,217 persons were sentenced on crack trafficking offenses in FY 2020, which accounts for "only" 7.5% of all offenders sentenced for drug trafficking offenses, the import and impact of the EQUAL Act would not be as huge now as it might have been in years past.  (In FY 2009, just before the Fair Sentencing Act of 2010 reduced the crack/powder disparity from 100-1 to 18-1, there were over 5,000 persons sentenced on crack offenses; indeed, more than 5,000 persons were sentenced each year on federal crack offenses through most of the 2000s.)  Still, the USSC 2020 data show that over 93% of those sentenced for federal crack offenses are persons of color (with 77% black), so that there is still a profound inequitable impact from our federal sentencing scheme that still unfairly treats crack offenses as much more serious than functionally comparable powder offenses.

Links to some prior MLK Day posts:

• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• Reflecting on race and criminal justice realities to honor MLK's legacy
• Another reminder of race and criminal justice realities to honor MLK's legacy
• NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
• Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms 
• Some new quotes at the end of the latest MLK day
• What might Martin Luther King seek as the next step in federal criminal justice reform? 
• Remembering and honoring the (always timely) poignancy of the great words of Dr. Martin Luther King 

A few related posts on the EQUAL Act:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 

US Sentencing Commission issues new report on "Recidivism of Federal Drug Trafficking Offenders Released in 2010"

The US Sentencing Commission today published some more findings from its big eight-year recidivism study of federal offenders released from prison in 2010. This new 144-page report is titled "Recidivism of Federal Drug Trafficking Offenders Released in 2010," and this USSC webpage provides this overview with key findings:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,783 federal drug trafficking offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism. This report also compares recidivism outcomes for federal drug trafficking offenders released in 2010 to drug trafficking offenders released in 2005.

The final study group of 13,783 drug trafficking offenders satisfied the following criteria:

• United States citizens
• Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010
• Not reported dead, escaped, or detained
• Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records)

Key Findings

• The rearrest rate for drug trafficking offenders released in 2010 was similar to the rate for those released in 2005 despite intervening changes in the criminal justice system: the Supreme Court’s decision in Booker, adjustments to sentencing of crack cocaine offenses, and increased use of evidence-based practices in federal supervision.
• The rearrest rate for a new offense or an alleged violation of supervision conditions was similar for drug trafficking offenders (47.9%) as compared to all other offenders released in 2010 (50.4%).
• Of those drug trafficking offenders released in 2010 who were rearrested, the median time from re-entry to the first rearrest was 23 months. By comparison, the median time from re-entry to the first rearrest for all other offenders was 16 months.
• Crack cocaine trafficking offenders were rearrested at the highest rate (57.8%) of any drug type, while powder cocaine trafficking offenders were rearrested at the lowest rate (41.8%). Rearrest rates for other primary drug types ranged from 42.7 percent to 46.7 percent.
• Approximately one-third (32.0%) of drug trafficking offenders who were rearrested had drug-related offenses (either drug trafficking, drug possession, or another drug offense) as their most serious new charge at rearrest. Nearly one-fifth (19.9%) were charged with assault at rearrest.
• Criminal history was strongly correlated with rearrest. Drug trafficking offenders’ rearrest rates ranged from 29.9 percent for offenders with zero criminal history points to 74.9 percent for offenders with 13 or more criminal history points.
• Age at release into the community also was strongly correlated with likelihood of rearrest. Drug trafficking offenders released prior to age 21 had the highest rearrest rate of 70.1 percent, while drug trafficking offenders who were 60 years or older at the time of release had the lowest rearrest rate of 16.4 percent.
• Over an eight-year follow-up period, 47.9 percent of drug trafficking offenders in the 2010 release cohort were rearrested compared to 50.0 percent of drug trafficking offenders in the 2005 release cohort.

Early preview of SCOTUS cases considering criminal convictions for doctors opioid prescribing practices

I briefly noted the interesting federal criminal drug cases that the Supreme Court took up in early November in this post.  With the top-side briefs now being submitted to SCOTUS, this local press article, headlined "U.S. Supreme Court will hear case of Alabama doctor who prescribed powerful opioids," provides a somewhat fuller preview. Here are excerpts:

Justices on the U.S. Supreme Court have agreed to hear the appeal of an Alabama pain doctor convicted of running a pill mill, a case that could change how federal prosecutors handle opioid cases.  A federal judge in 2017 sentenced Dr. Xiulu Ruan of Mobile to 21 years in prison for several charges including drug distribution and money laundering related to operations at Physicians Pain Specialists of Alabama.  Ruan appealed his conviction last year to the 11th U.S. Circuit Court of Appeals but lost.  The U.S. Supreme Court agreed earlier this year to hear Ruan’s appeal.

The doctor claims his prescriptions of fentanyl and other opioids were supposed to help patients with severe pain.  In a brief, his lawyers said physicians should not risk arrest and prosecution for unconventional treatments when other approaches have failed.  In Ruan’s case, he prescribed fentanyl approved for patients with cancer pain to people suffering from back, neck and joint pain, according to the U.S. Department of Justice....

Ruan’s appeal has been consolidated with another case, Dr. Shakeel Kahn, who practiced in Arizona and Wyoming.  Both men were found guilty of violating the federal Controlled Substances Act and said juries were not allowed to consider a “good faith” defense, which is aimed at protecting doctors trying to help patients.  The supreme court could uphold his conviction or send his case back to trial.

Ruan’s criminal trial lasted seven weeks in 2017 and featured testimony from patients who supported the doctor and family members who said loved ones received dangerous doses of addictive painkillers.  Prosecutors acknowledged that many patients received good care at the two clinics, but said some prescriptions fell far outside the norm.  Ruan and another practitioner at the clinic, Dr. John Patrick Couch, were among the nation’s top prescribers of fentanyl painkillers.  Couch was also convicted and sentenced to 20 years in prison.  He has also appealed his case.

In its response, attorneys for the U.S. Department of Justice said Ruan prescribed much higher rates of opioids than other doctors and earned more than $4 million as a result. Ruan and his partner issued almost 300,000 prescriptions for controlled substances, they wrote. Prosecutors said Ruan had deep ties to drug companies that created fentanyl medications. After his conviction, they seized assets that included exotic cars, residential and commercial property....

In his brief, Ruan’s attorney wrote that Physicians Pain Specialists of Alabama did not operate as pill mills. The clinics only accepted patients with insurance, refused cash payment and used diagnostic tools to find the sources of patients’ pain.  Only patients with intractable pain received fentanyl, Ruan testified at his trial. “He also testified that the medication was a ‘lifesaver’ for patients who would otherwise ‘have to go to [the] ER’ during such an episode,” the brief said.

Pain patients have criticized crackdowns on pain clinics and doctors.  Compassion & Choices, an organization that advocates for dying patients, submitted a brief in support of Ruan. “Medical practitioners prescribing opioids to such patients in good faith are not drug pushers under the Act,” according to the Compassion & Choices brief.  “Practitioners thus should not have to suffer the specter of criminal liability simply for treating such patients at such a vulnerable, critical, and private time in their lives.”...

Arguments in Ruan’s case are scheduled for March 1, 2022.

The briefing in Ruan v. US, No. 20-1410, is available at this SCOTUSblog link, and the brief from the defense sets up the issue this way in its Introduction:

To ensure that licensed medical professionals do not risk criminal prosecution and felony conviction based on simple malpractice, nearly all courts, construing the CSA and the implementing regulations, require that the government prove that the physician lacked a good faith basis for her prescription.  See Pet. 4-5, 18-27.  But not the Eleventh Circuit. According to the court of appeals, a doctor may be convicted under the CSA if her prescription fell outside of professional norms — without regard to whether she believed in good faith that the prescription served a bona fide medical purpose.  That outlier position, if sustained, would result in the kind of “sweeping expansion of federal criminal jurisdiction” that this Court has repeatedly condemned. Kelly v. United States, 140 S. Ct. 1565, 1574 (2020) (quoting Cleveland v. United States, 531 U.S. 12, 24 (2000)); see also Bond v. United States, 572 U.S. 844, 862-865 (2014). It would also chill medical progress, disrupt the doctor-patient relationship, and criminalize prescriptions whenever a lay jury is persuaded that the physician exceeded the “usual” practice of medicine.

Though these cases are formally about the standards for criminal liability for these doctors, there are sentencing stories lurking here.  First, of course, are the high sentencing stakes for any doctors found guilty of illegal drug distribution.  Decades-long federal sentences are common — but not at all consistent as Prof Adam M. Gershowitz has detailed — and local press indicates federal prosecutors wanted sentences considerably longer than the two decades given to Drs. Ruan and Couch.  But why might such extreme prison terms be needed, given that, once these doctors lose their prescribing licenses, they are functionally unable to repeat their crimes and their risk of recidivism is very low at their age?  Simply put, some vision of retribution must be driving the severity of the sense, especially since deterrence of doctors is likely achieved by any criminal prosecutions and over-deterrence seems like a real risk here.

In the end, the fact that the sentencing stakes are so high likely helps explain why these cases got the Supreme Court's attention.  And the debate over the whether the law requires proving a lack of good faith would, in a sense, get the the heart of the retributivist question of just how blameworthy these doctors really are.  For all those reasons (and others), when oral argument takes place in a couple months, I will be interested to see if any Justices bring up any of the sentencing issues lurking beneath these cases. 

Prior related post:

• SCOTUS grants cert on two (consolidated) cases to consider physician criminal liability for unlawfully dispensing prescription drugs 

Sixth Circuit reversal of denial of compassionate release shows how appellate review can sometimes reduce sentencing disparities

A few months ago in this post I flagged a lengthy CNN article discussing disparities in who was receiving compassionate release sentencing reductions in federal courts.  That CNN article featured the case of Horacio Estrada-Elias, an ill 90-year-old inmate serving a life sentence for marijuana trafficking crime, who had his request for compassionate release denied by Judge Danny Reeves in July 2021.  I was pleased to learn this week about notable updates to this story, reported in this new CNN piece headlined "A 90-year-old was serving life for marijuana despite serious illness. Now he's going home."   Here are some of the details:

In a dramatic reversal, a 90-year-old, seriously ill federal inmate serving life in prison for a nonviolent marijuana trafficking crime will go free after a judge granted him compassionate release on Tuesday -- overturning his previous order denying release.  Horacio Estrada-Elias, who was the subject of a CNN investigative story in September, is set to be freed this week after more than a dozen years behind bars....

Estrada-Elias suffers from congestive heart failure, atrial fibrillation and chronic kidney disease, and also contracted the coronavirus while in prison, according to court affidavits filed by doctors.  His prison doctor predicted in April 2020 that he had "less than 18 months" to live, and his warden recommended release, noting his spotless disciplinary record and writing last year that "he has been diagnosed with an incurable, progressive illness in which he will not recover."

Federal Judge Danny Reeves denied Estrada-Elias' motion for compassionate release in July, arguing that a life sentence is "the only sentence that would be appropriate."  But last month, an appeals court ordered Reeves to reconsider.  Two judges on a three-judge panel of the 6th Circuit Court of Appeals wrote that Reeves had "abused (his) discretion" by ignoring the fact that Estrada-Elias is unlikely to reoffend and "overly emphasizing" his nonviolent crimes. One judge dissented.

On Tuesday, the day after the formal appeal mandate was transmitted to his court, Reeves issued a new opinion approving compassionate release.  "The defendant's medical condition constitutes an extraordinary and compelling reason for release... when considered in conjunction with the defendant's advanced age," Reeves wrote, reducing Estrada-Elias' sentence to time served....

Reeves has an especially tough record on compassionate release, rejecting the vast majority of more than 100 release motions that came before him since the beginning of the coronavirus pandemic, according to a CNN analysis of court records.  In his earlier opinion, he had argued that the large volume of marijuana that Estrada-Elias trafficked had shown "a flagrant disrespect for the law that can only be reflected in an equally severe sentence."

His reversal "seems to be rooted in common sense and human dignity as opposed to legal formalities," said Alison Guernsey, a University of Iowa law professor who has studied compassionate release cases and reviewed Reeves' opinion.  She said it is uncommon for inmates who are denied compassionate release to win on appeal.

Estrada-Elias was sentenced to life in April 2008 after pleading guilty to a conspiracy to traffic tens of thousands of pounds of marijuana into and around the United States. Reeves, who handled his case, was required to give him a life sentence because he had previous drug convictions.  But the mandatory minimum law that applied was taken off the books in 2018.  If Estrada-Elias hadn't been subject to the mandatory minimum, the guideline for his sentence range would have been about 12 to 16 years in prison, according to court documents.

Estrada-Elias' case is an example of the wide disparities across the country in compassionate release during the pandemic.  In 2020 and the first half of 2021, some federal courts granted more than 40 percent of compassionate release motions in their districts, while others granted less than 3 percent, according to data from the US Sentencing Commission -- even though judges in all of the districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases.

In Estrada-Elias' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions, the data shows. Guernsey, the law professor, said the vast disparity in grant rates between courts "really calls into question the equity of compassionate release." "It appears to depend not on the gravity of your medical condition or the type of extraordinary and compelling circumstances that will dictate whether you're released," she said, "but almost a fluke of geography."

As the title of this post is meant to highlight, I think appellate review can and should play a significant role in reducing extreme sentencing outcomes that seem like a "fluke of geography." Notably, Justice Breyer's opinion for the Supreme Court in the remedial section of Booker stated that appellate review for reasonableness "would tend to iron out sentencing differences," but harsh sentencing outcomes are almost never reversed as unreasonable.  The panel Sixth Circuit opinion in US v. Estrada-Elias, No. 21-5680 (6th Cir. Nov. 24, 2021) (available here), which is unpublished(!?!) and a split decision, is a real rarity that shows reasonableness review can function to improve equity.  The majority opinion in this case starts this way:

Horacio Raul Estrada-Elias, a ninety-year-old man suffering from a terminal illness, appeals the district court’s order denying his motion for compassionate release filed pursuant to 28 U.S.C. § 3582(c)(1)(A)(i).  Estrada-Elias has spent fifteen years in prison for conspiracy to distribute marijuana.  Because of his illness, Estrada-Elias is bedridden.  He has never been convicted of a violent crime and has not received a single disciplinary infraction in prison.  The warden of the prison in which Estrada-Elias is incarcerated agrees that Estrada-Elias should be released from custody.  Despite Estrada-Elias’s age, illness, incapacity, and lack of any violent convictions, the district court denied his compassionate-release motion, finding that life in prison is “the only sentence that would be appropriate and that would protect the public” from this ninety-year-old terminally ill grandfather. R. 210 (Dist. Ct. Order at 14) (Page ID #2214) (quotation omitted).  We hold that the district court abused its discretion in denying Estrada-Elias’s compassionate-release motion.

Recidiviz forecasts federal marijuana legalization would reduce "federal prison population by 2,807 over 5 years"

Recidiviz has this notable new data analysis titled "Ending Federal Prison Sentences for Marijuana Offenses."  Here is part of its text:

Ending federal marijuana prohibition specifically, ceasing federal prison commitments for marijuana-related offenses could reduce incarceration costs by $571.8M and the federal prison population by 2,807 over 5 years. The policy is also projected to divert roughly 1,120 people from being sent to federal prison each year....

In spite of these shifts in public opinion and state law, marijuana is still prohibited at the federal level, and more than 3,000 individuals are currently serving marijuana-related sentences in federal prison.  Significant racial disparities exist in federal marijuana sentencing; an estimated 60% of people serving time in federal prison for marijuana offenses are of Hispanic descent, and over the past five years, 67% of individuals receiving prison sentences for marijuana offenses were Hispanic.

While the rate of prison sentencing for federal marijuana offenses has declined substantially in the past five years, individuals incarcerated for federal marijuana offenses still face an average sentence of approximately 38 months.  Furthermore, nearly 1 in 4 individuals incarcerated under federal marijuana trafficking offenses will face
reincarceration.

"Moral Panic and the War on Drugs"

The title of this post is the title of this new article now available at SSRN authored by Phil Lord.  Here is its abstract:

This Article analyzes the War on Drugs as a social phenomenon. It argues that such an analysis, which rejects the assumption that collective, institutionalized behavior is generally rational, can help us understand key aspects of why we continue to marginalize disadvantaged individuals.  If the War on Drugs is a war and wars are won or lost, there is no question we lost.  Whatever drug-related evil that war sought to eradicate, whether drug consumption, trafficking, or addiction, the data clearly shows that “drugs won.”

Along the way, we nonetheless persisted — and largely still do. We filled prisons, lost lives, and shattered hopes and dreams.  Those we hurt the most were already marginalized.  To state that we lost is unhelpful and insufficient.  Of course, we did.  And we can draw obvious lessons that medicine and psychology work better than carceral institutions and that no one benefits from marginalizing already marginalized and often sick individuals. 

If the War on Drugs never worked, more salient questions are to be asked about why we fought it. This Article posits that the War on Drugs is not about drugs, crime, or addiction: it is about us.  It is about why we cede to fear, anxiety, and irrationality. It is about why we stigmatize and hurt the most vulnerable. Like other irrational and counterproductive policies, the War on Drugs is not an anomaly.  It bears close resemblance to other wars we fought (and fight) against the disempowered: witches, gays, Muslims, and others.

El Chapo's wife sentenced to three years in federal prison (guidelines be damned)

This Vice article provides a thorough accounting of a notable federal sentencing with this rousing start: "Sinaloa Cartel leader Joaquín “El Chapo” Guzmán Loera became infamous for daring jailbreaks in Mexico only to end up serving life in prison in the United States. Now his wife, Emma Coronel Aispuro, has managed to avoid a similar fate."  Here is more from the piece: 

The 32-year-old Coronel was sentenced Tuesday to just three years in prison after pleading guilty earlier this year to charges that she helped her husband run his drug trafficking empire, facilitated one of his prison escapes in Mexico, and violated U.S. sanctions by spending his illicit fortune. She also paid nearly $1.5 million to the U.S. government.

It could have ended much worse for Coronel, who faced up to 14 years for her crimes under federal sentencing guidelines.  Federal prosecutors in Washington, D.C., asked her judge for leniency, calling for her to serve just four years behind bars and fueling speculation that she’d struck a deal to cooperate.

Coronel’s attorneys and federal prosecutors made the case to sentencing Judge Rudolph Contreras that she only played a minimal role in the cartel and that her crimes were committed simply because she was married to El Chapo. “The defendant was not an organizer, leader, boss, or other type of manager,” prosecutor Anthony Nardozzi said. “Rather, she was a cog in a very large wheel of a criminal organization.”

A soft-spoken Coronel addressed the court in Spanish before the judge handed down the sentence, asking for forgiveness and making a plea for leniency so that she could be free to raise her 10-year-old twin daughters, who were fathered by El Chapo....

The light sentence has raised eyebrows among ex-prosecutors who handled similar cases against high-level drug traffickers and their associates.  “Downward departure,” or a sentence below the range called for by federal guidelines, is typically reserved for individuals who agree to assist the government in some capacity, David Weinstein, a former assistant U.S. Attorney in Miami, told VICE News.  “They’re treating her like a cooperator,” said Weinstein, who now works as a defense attorney.  “These are the types of circumstances where people are involved in large-scale drug trafficking conspiracies and are benefiting the kingpin and helping the kingpin. You usually don’t get downward departure unless you’re providing substantial assistance.”

Coronel, who holds dual citizenship in the U.S. and Mexico, was taken into custody by FBI agents on Feb. 22 after arriving at Dulles International Airport near Washington, D.C.  While federal authorities announced that Coronel had been “arrested,” sources familiar with her case told VICE News she was aware of pending charges against her and came to turn herself in.

Coronel has been held since February at a jail in Alexandria, Virginia, and is now expected to be transferred into the federal prison system to serve out her sentence. She will receive credit for time served and could be released in just over two years.

If prosecutors truly believed Coronel had only played a minimal role and was merely El Chapo’s wife, it's unclear why she was even charged in the first place because her prosecution would be a waste of time and resources, according to Bonnie Klapper, a former federal prosecutor in the Eastern District of New York.  Klapper, now in private practice, said Coronel’s sentence “is a very clear demonstration of how prosecutors can manipulate the sentencing guidelines to either punish or reward a defendant.”...

In sentencing Coronel, Judge Contreras noted that putting her behind bars for a long time would do little to dissuade anyone else from joining the Sinaloa Cartel. In fact, he said, there was little indication that prosecuting El Chapo had any impact on the cartel’s operations.  “One can make a plausible argument that even the removal of Guzmán from the conspiracy has not resulted in a reduction of harm to the public,” the judge said. “There appears to be no shortage of replacements to fill the defendant’s slot in the organization.”

Contreras noted Coronel’s “impoverished” upbringing and the involvement of her family members in the drug trade, and indicated that he believed that she was a victim of her circumstances who was very young and impressionable when she married El Chapo. “I hope you raise your twins in a different environment than you’ve experienced to date,” Contreras said in his parting words to Coronel. “Good luck.”

This article is astute to note how this case highlights "manipulation" of the federal sentencing guidelines and sentencing outcomes. Indeed, the Government's sentencing memo in the case showcases how the guidelines can function more like a parlor game than as a steady guide to sensible sentencing.  According to that memo, Coronel's PSR initially "concluded that the Defendant’s applicable Guidelines range in this case was 135 months to 168 months ... [and] neither the Government nor the Defendant objected to this Guidelines calculation."  But, sometime thereafter, the Government decided "that Defendant’s applicable Guidelines range is 57 to 71 months in prison ... [and] Defendant and the Probation Office concur."

In other words, everyone in this case first determined that the guidelines recommended 11+ to 14 years in prison, but then later everyone decided the guidelines recommended less than half that length of time.  And then, guidelines be damned, the government decided to recommend a sentence of 48 months (nine months below the low end of the lower guideline range).  And then Judge Contreras decided that 36 months was a sufficient sentence. 

Of course, one might reasonably expect the guidelines to be a poor "fit" for this kind of unique case with its many unique elements.  But, then again, a quarter century ago in Koon v. US, 518 U.S. 81 (1996), the Supreme Court rightly made this closing observation: "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."

Two exciting DEPC events on tap in coming days

I am pleased to be able to promote here a couple of online events scheduled this week and next organized by OSU's Drug Enforcement and Policy Center (which I help direct).  I am quite excited about both events, and here are the titles and short descriptions (with a link to see the panelists and to register):

"Addressing Harm: Opioid Settlement Background and Historical Context"

Date: Wednesday, Nov. 10, 2021    Time:  Noon - 1:15 p.m. (Register here)

The opioid epidemic that has swept across the United States in the last decade has had a devastating impact on individuals as well as their families and communities. While the true cost of the epidemic is most likely incalculable, states and local governments have fought hard to seek damages from various companies along the opioid supply chain to help address the resulting crises plaguing their communities.

Join the Drug Enforcement and Policy Center and Harm Reduction Ohio for the first panel in a series on Ohio's opioid settlement.  The purpose of this panel is to understand how opioid litigation was pursued and the settlements that resulted. The panel will look back at similar litigation, such as the tobacco settlement, to see how the current settlement compares to earlier public health litigation and what lessons can be learned.

"Cannabis Crossroads: What’s in Store for Marijuana Reform in Ohio?"

Date: Friday, Nov. 19, 2021    Time:  Noon - 1:30 p.m. (Register here)

Join the Drug Enforcement and Policy Center and Natural Therapies Education Foundation for a virtual discussion featuring panelists representing current Ohio cannabis reform endeavors. The event will provide attendees with knowledge about pending initiatives and legislation, as well as a vision of what the future may hold for cannabis in Ohio.

SCOTUS grants cert on two (consolidated) cases to consider physician criminal liability for unlawfully dispensing prescription drugs

The Supreme Court this afternoon issued this new short order list that grants certiorari in a few new cases, including a (consolidated) pair of criminal matters involving whether and when doctors can be criminal liable for unlawfully dispensing prescription drugs.  The two cases are Ruan v. US, No. 20-1410, and Kahn v. US, No. 21-5261, and here is the question presented in the first of these:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Checking in with Oregon's drug decriminalization effort one year in

Stateline has this effective piece, headlined "Oregon’s Drug Decriminalization May Spread, Despite Unclear Results," providing an update of sorts on Oregon's experience one year after a ballot initiative enacted statewide drug decriminalization.  I recommend the full piece, and here are excerpts:

Progressive lawmakers and civil rights groups want more states to follow Oregon’s recent example and drop criminal penalties for carrying small amounts of heroin, cocaine or other drugs, and to spend more money on addiction recovery services.  They say substance use disorder should be treated as a disease, rather than as a crime.

Democratic lawmakers in Maine, Massachusetts, Rhode Island and Vermont all proposed decriminalization bills this year.  Advocacy groups hope to get a decriminalization measure on the ballot in Washington in 2022 and in California in 2024, said Matt Sutton, director of public relations for the Drug Policy Alliance, a New York-based nonprofit.  The Drug Policy Alliance helped fund the ballot initiative that resulted in Oregon’s new law, which took effect in February.

But Oregon’s experience shows that it’s easier to eliminate criminal penalties than to ramp up behavioral health services and get more people to use them.  In fact, critics of decriminalization say such policies could decrease access to treatment, because fewer low-level offenders will be pushed into court-ordered programs....

The law will use marijuana tax revenue — plus any criminal justice money saved through decriminalization — to fund organizations that help people seek and maintain sobriety. Those services could include peer support groups and transitional housing programs. Such organizations will get about $300 million over the next two years [which is estimated to be] about five times the amount Oregon is currently spending on services that aren’t provided through Medicaid, the public health insurance program for people who have low incomes or disabilities. About $30 million already has been disbursed....

Drug arrests and convictions have plummeted in Oregon since February.  The ballot measure made possessing small amounts of drugs — such as less than a gram of heroin, or less than two grams of cocaine — a civil citation punishable by a $100 fine rather than a crime.  It also downgraded felony charges to misdemeanors for possessing slightly larger amounts.

The measure established a hotline that people whom police ticket for possession can call to undergo a health assessment.  If they complete the assessment, they can get their citations waived, even without further treatment or other services.  The law also requires the state to establish addiction recovery centers to connect people who use drugs with treatment or other assistance, such as housing or overdose prevention education.

Before decriminalization, in 2019, Oregon law enforcement officers made more than 6,700 arrests and courts issued more than 4,000 convictions for drug possession in cases where possession was the most serious potential charge, according to the Oregon Criminal Justice Commission....  Between February and August this year, law enforcement made 1,800 arrests for such possession crimes and courts issued 364 convictions.  Defendants most likely were arrested for carrying large amounts of drugs or for drug dealing offenses, said Ken Sanchagrin, executive director of the commission. 

Decriminalization doesn’t appear to be leading to a rise in drug-related crime, such as property crime.  Property crimes in the state actually decreased this year, according to data provided by the criminal justice commission and the judicial department.

It’s less clear whether decriminalization has led more people to seek help for substance use disorders.  Defendants failed to show up in court to make their case against about half of 1,300 citations issued through September for possession of small amounts of drugs, according to the Oregon Judicial Department.  In only seven cases did defendants submit a health assessment to get their fines waived.  To critics of the new law, the seldom-used hotline proves that decriminalization isn’t working....

Policymakers nationwide likely will be watching Oregon for policy insights, said Beau Kilmer, director of the RAND Drug Policy Research Center at the RAND Corporation, a California-based research group.  But the Oregon law is so new — and is being implemented at such an unusual time, during a global pandemic — that it’s hard to tell whether it’s working as intended, he said.  “I suspect voters in other states will be considering this before we have hard evidence on it.”

First published papers from "Understanding Drug Sentencing" now available in latest issue of Federal Sentencing Reporter

A little over a year ago, I highlighted this call for papers relating to the "Understanding Drug Sentencing and its Contributions to Mass Punishment" event that I took place last month.  The original plan was to publish papers just in the Spring 2022 symposium edition of the Ohio State Journal of Criminal Law.  A set of longer pieces will be appearing in that volume, but response to the call was so great that we arranged for the Federal Sentencing Reporter to also serve as a home for these works.  And I am quite pleased to see that the latest FSR issue is now available here online this with great line up of pieces: 

"Sentencing Drug Offenders Justly While Reducing Mass Incarceration" by Hon. Lynn Adelman

"Supporting Responsive Federal Drug Sentencing Through Education in the Workshop on Science-Informed Decision Making" by Hon. Nancy Gertner, Dr. Judith Edersheim, Dr. Robert Kinscherff & Cassandra Snyder

"Sentencing Federal Drug Offenders: Evidence of Judicial Activism" by Melissa Hamilton

"Crack 2.0: Federal Methamphetamine Sentencing Policy, the Crack/Meth Sentencing Disparity, and the Meth/Meth-Mixture Ratio — Why Drug Type, Quantity, and Purity Remain 'Incredibly Poor Proxies' for Sentencing Culpability Under 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1." by Lex A. Coleman

"Why Are Federal Meth Sentences Getting Longer?" by Jake J. Smith

"Sentencing to Drug Court: Tailoring the Program to the Participant Through Judicial Education and Oversight" by Lizett Martinez Schreiber

"Public Support for Using “Second Chance” Mechanisms to Reconsider Long-Term Prison Sentences for Drug Crimes" by Colleen M. Berryessa

"A History of Early Drug Sentences in California: Racism, Rightism, Repeat" by Sarah Brady Siff

BJS releases "Federal Justice Statistics, 2019" with immigration and drugs dominating federal dockets

Via email this morning I learned of the release of this notable new data report from the Bureau of Justice Statistics titled simply "Federal Justice Statistics, 2019."  The email summarized the report this way:

This report, the 33rd in an annual series which began in 1979, provides national statistics on the federal response to crime. It describes case processing in the federal criminal justice system for fiscal year 2019, including—

• investigations by U.S. attorneys
• prosecutions and declinations
• convictions and acquittals
• sentencing
• pretrial release
• detention
• appeals
• probation and parole
• prisons.

Findings are based on BJS’s Federal Justice Statistics Program (FJSP).  The FJSP collects, standardizes, and reports on administrative data from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

Covering a period from Oct. 1 2018 to Sept. 30, 2019, this report captures the last full yearly snapshot of the federal criminal justice system before COVID hit in early 2020.  And, though federal data always reveal that the modern federal justice system is focused particularly on immigration and drug cases, these new data from the report still paint a notable picture of our federal criminal justice system in operation while highlighting how arrest patterns and sentencing patterns diverge for the two biggest crime categories:

During FY 2019, 8 in 10 federal arrests were for immigration, drug, or supervision violations (165,123). Immigration (117,425 arrests) was the most common arrest offense in FY 2019.  More than half (57%) of federal arrests involved an immigration offense as the most serious arrest offense.  The next most common arrest offenses were for drug offenses (12% of all arrests) and supervision violations (11%)....

In FY 2019, a total of 58,886 federally sentenced persons were admitted to federal prison.  Of these, 45,425 entered federal prison on U.S. district court commitments.  Another 13,461 persons were returned to federal prison for violating conditions of probation, parole, or supervised release, or were admitted for a reason other than a U.S. district court commitment.  In FY 2019, 21,075 persons entered federal prison for drug offenses, most of whom (15,574, or 74%) had been sentenced to more than 1 year.

In 2009 and 2019, most people in federal prison were serving time for a drug offense.  Persons with a drug offense as the most serious commitment offense made up 47% of the prison population at fiscal year-end 2019, down from 53% at fiscal year-end 2009.  Persons serving time for a weapon offense increased from 15% of the prison population in 2009 to 19% in 2019.  Persons serving time for a violent offense remained at 6% in 2009 and 2019, and persons serving time for an immigration offense decreased from 12% in 2009 to 6% in 2019.

Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity?

My twitter feed this morning was full with folks noting that today marks officially a full 35 years(!) since Congress enacted the notorious 100-1 crack/powder cocaine ratio disparity.  The full story of 35 years of federal crack sentencing injustice and dysfunction cannot be recounted in a blog post.  But a few highlights document that a complete fix is long in the making, long overdue, and cannot come to soon. 

The US Sentencing Commission sent a report to Congress in 1995  — 26 years ago! —  highlight the myriad flaws with the crack-powder sentence scheme and proposed guidelines changes to partially fix the 100:1 crack/powder disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact only a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the 2018 FIRST STEP Act.

Excitingly, as noted here, the US House voted 361-66 last month to pass the EQUAL Act to end, finally and completely, the statutory disparity between powder and crack cocaine sentences.  In this new Hill commentary, Aamra Ahmad And Jeremiah Mosteller make the case that Congress should finally get this long overdue reform to the finish line.  Here is the start and end of their piece:

Thirty-five years ago today, while the country was still reeling from the tragic death of Len Bias — a University of Maryland basketball star who, just days after being drafted by the Boston Celtics, died from a drug overdose — Congress passed and President Reagan signed into law the Anti-Drug Abuse Act.  Assuming that the drug that killed Len was crack, Congress drafted a law that would impose harsher penalties on crack offenses.  It would impose the same mandatory prison sentence for five grams of crack cocaine as 500 grams of powder cocaine.  Even after it became known that the drug that killed Len was powder cocaine, not crack, the narrative had taken off that crack is more dangerous than powder, and Congress established the 100-to-1 disparity between crack and powder cocaine in federal law.

Over the years, this sentencing disparity has become emblematic of both the ineffectiveness of reactionary criminal justice policy and the racial disparities existing in our criminal justice system....

The EQUAL Act recently passed the House of Representatives with an overwhelming bipartisan vote of 361 to 66.  It is rare to see Louie Gohmert (R-Texas), a former Texas judge and nationally-recognized staunch conservative, agree with Hakeem Jeffries (D-N.Y.), one of the leading progressive voices in the leadership of the Democratic Party, on criminal justice reform, but that is just what happened on the House floor when they both spoke in support of the EQUAL Act.  It is now up to the Senate to pass this long-overdue legislation and send the EQUAL Act to President Biden’s desk for his signature.  Senators Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Rob Portman (R-Ohio), Thom Tillis (R-N.C.), Rand Paul (R-Ky.), and Patrick Leahy (D-Vt.), and Lindsey Graham (R-S.C.) are the sponsors of the Senate companion legislation (S. 79) and have taken the lead in building a coalition to pass this legislation during the 117th Congress.  The time is now for the Senate to take action and rectify this long-standing injustice in our criminal legal system.

A few prior recent related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 

New report examines aftermath of Baltimore's no-prosecution policy for minor drug possession and prostitution

As reported in this new release, a "new report from researchers at Johns Hopkins Bloomberg School of Public Heath found that Baltimore’s no-prosecution policy for minor drug possession and prostitution, enacted at the start of the COVID-19 pandemic, led to fewer new low-level drug and prostitution arrests, almost no rearrests for serious crimes for those who had charges dropped, and fewer 911 calls."  Here is more:

The findings suggest the new policies did not result in increased public complaints about drug use or sex work, and that those who had charges dropped did not go on to commit serious crimes.

Baltimore State’s Attorney Marilyn Mosby announced that Baltimore would stop prosecuting low-level drug and drug paraphernalia possession and prostitution in March 2020, chiefly as an infection-reduction measure at the start of the COVID-19 pandemic.  A year later she announced that the policy would remain in place — even after the pandemic winds down — as a way of reducing the burdens on city police and on the poorer, predominantly Black city residents who are traditionally arrested for such crimes....

The report’s key findings, covering the 14 months following the policy change (April 2020 to May 2021), include:

• An estimated 443 new drug/paraphernalia-possession and prostitution arrests were averted as a result of the new no-prosecution policy, 78 percent of which were averted in the Black community. This analysis was based on Baltimore Police Department arrest data.
• Of the 741 people whose drug and prostitution charges were dropped, six—less than 1 percent—had new arrests for serious crimes during the study period. This analysis was based on Maryland Courts Judicial Information System data.
• Calls to 911 about drug/paraphernalia and prostitution declined significantly in the post-policy change period.

The full report, titled Evaluation of Prosecutorial Policy Reforms Eliminating Criminal Penalties for Drug Possession and Sex Work in Baltimore, Maryland,” is available at this link.

Recordings of "Understanding Drug Sentencing" symposium’s panels now available

Regular readers surely recall various prior posts promoting the terrific conference organized by the Drug Enforcement and Policy Center and the Academy for Justice which took place earlier this month on October 7-8, 2021, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."   I am now pleased to be able to report that Recordings for six of the Understanding Drug Sentencing symposium’s panels are now available on the event site here. You can also find recordings via the DEPC playlist on YouTube here.

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this new publication by The Sentencing Project authored by Ashley Nellis.  Here are parts of the report's overview:

This report details our observations of staggering disparities among Black and Latinx people imprisoned in the United States given their overall representation in the general population.  The latest available data regarding people sentenced to state prison reveal that Black Americans are imprisoned at a rate that is roughly five times the rate of white Americans.  During the present era of criminal justice reform, not enough emphasis has been focused on ending racial and ethnic disparities systemwide.

Going to prison is a major life-altering event that creates obstacles to building stable lives in the community, such as gaining employment and finding stable and safe housing after release. Imprisonment also reduces lifetime earnings and negatively affects life outcomes among children of incarcerated parents.

These are individual-level consequences of imprisonment but there are societal level consequences as well: high levels of imprisonment in communities cause high crime rates and neighborhood deterioration, thus fueling greater disparities.  This cycle both individually and societally is felt disproportionately by people who are Black. It is clear that the outcome of mass incarceration today has not occurred by happenstance but has been designed through policies created by a dominant white culture that insists on suppression of others....

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of its racist underpinnings. Immediate and focused attention on the causes and consequences of racial disparities is required in order to eliminate them.  True progress towards a racially just system requires an understanding of the variation in racial and ethnic inequities in imprisonment across states and the policies and day-to-day practices that drive these inequities.

KEY FINDINGS

• Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans.
• Nationally, one in 81 Black adults per 100,000 in the U.S. is serving time in state prison.  Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites is in prison.
• In 12 states, more than half the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.
• Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.
• Latinx individuals are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of whites.  Ethnic disparities are highest in Massachusetts, which reports an ethnic differential of 4.1:1.

RECOMMENDATIONS

1. Eliminate mandatory sentences for all crimes.  Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges.  These policies contributed to a substantial increase in sentence length and time served in prison, disproportionately imposing unduly harsh sentences on Black and Latinx individuals.

2. Require prospective and retroactive racial impact statements for all criminal statutes.  The Sentencing Project urges states to adopt forecasting estimates that will calculate the impact of proposed crime legislation on different populations in order to minimize or eliminate the racially disparate impacts of certain laws and policies.  Several states have passed “racial impact statement” laws.  To undo the racial and ethnic disparity resulting from decades of tough-on-crime policies, however, states should also repeal existing racially biased laws and policies.  The impact of racial impact laws will be modest at best if they remain only forward looking.

3. Decriminalize low-level drug offenses.  Discontinue arrest and prosecutions for low-level drug offenses which often lead to the accumulation of prior convictions which accumulate disproportionately in communities of color.  These convictions generally drive further and deeper involvement in the criminal legal system.

Terrific review of some ugly realities of stash-house stings

I hope readers recall the series of posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  Those posts (which are linked below with a few others) provides one look at one ugly part of the drug war represented by stash-house sting.  And now Rachel Poser has this great lengthy article in the newest issue of The New Yorker discussing the stash house sting story as part of the broader realities of undercover law enforcement operations.

The article is worth a full read, and its title highlights its themes: "Stash-House Stings Carry Real Penalties for Fake Crimes; The undercover operations seem like entrapment, but their targets can receive long sentences — sometimes even harsher than those for genuine crimes."  Here is a small excerpt: 

In the past four decades, sting operations of all types have become a major part of law enforcement in the United States, and stash-house stings are perhaps the most extreme example of this trend, because of the harsh penalties they carry. They can result in longer sentences than real crimes of a similar nature....  No judge is required to sign a warrant, and law-enforcement officials do not have to provide any evidence that a person is already engaged in criminal activity before initiating an undercover investigation....

The A.T.F. claims that stash-house stings catch established crews who already have the means to commit armed robbery. “If we wanted to go out and cast a wide net, we could do one of these a week — that’s not what we want to do,” an agent said in 2014, according to the Los Angeles Times.  “This technique is designed to take trigger-pullers off the streets.” Through the years, the A.T.F. has targeted many men with long and violent criminal histories, some of whom have shown up on the day of the robbery armed with assault rifles and bulletproof vests....

Nevertheless, the agency has also ensnared low-level offenders, and even people with no criminal records.  I reviewed thousands of pages of court transcripts from more than a dozen stash-house cases and found that many of the so-called crews were haphazard groups of family members, acquaintances, or strangers thrown together at the last minute, as targets scrambled to find willing participants. Suspects in these cases frequently asked the undercover agents for help distributing cocaine or obtaining guns....

As large numbers of stash-house cases made their way to court, some judges began to voice concern about the A.T.F.’s tactics.  “In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth,” Stephen Reinhardt, a judge on the Ninth Circuit Court of Appeals, wrote in 2014, “it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them.”  But the difficulty of proving entrapment, combined with mandatory minimums for drugs, left judges little choice but to affirm the convictions.  “You guys are dragging half a million dollars through a poor neighborhood,” William Fletcher, another Ninth Circuit judge, said the same year.  “Now, the law’s the law and I’m going to follow it, but I think you guys are making a mistake.”

Some prior related posts:

• Deep dive into litigation over Chicago “Stash House Stings”
• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation" 
• Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics 

Still time to register for day two of "Understanding Drug Sentencing" conference

I really enjoyed the first day of the two-day conference being put on by the Drug Enforcement and Policy Center and the Academy for Justice today and tomorrow, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  With a second day still to go, folks can still register for all of of Friday events, on this Agenda page.  Here are times and titles for the three great panels scheduled for Friday, October 8: 

11am – 12:15pm:   Sentencing Criteria as Crazymaker in Drug Cases

12:20pm – 1:35pm:   Reimagining an Antiracist Approach to Drug Sentencing

1:45pm – 3pm:   What Other Alternatives? Thinking Beyond Drug Courts and Sentencing

I thought day one of the symposium was terrific, and it included the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" with former US Attorney General Eric Holder, Jr., author and advocate Piper Kerman, Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon Marbley for the Southern District of Ohio.  I am pretty sure recordings of that great discussion, as well as all the other panels, should be available online before too long.  In the meantime, Kyle Jaeger at Marijuana Moment has this new piece discussing and contextualizing former AG Holder's comments under the headlined "Former U.S. Attorney General Says U.S. Is ‘On The Path’ To Federal Marijuana Decriminalization." 

New California law to end mandatory minimum terms for many non-violent drug offenses

Ironically, I have been so busy this week with this on-going conference about drug sentencing, I am just now getting a chance to blog about the drug sentencing news from California discussed in this local article headlined "Gov. Newsom Signs Bill Ending Mandatory Minimum Sentences For Many Non-Violent Drug Crimes." Here are details:

Governor Gavin Newsom signed into law a bill that ends mandatory minimum sentences for non-violent drug crimes on Tuesday, giving judges more individual discretion on punishing criminals.

Senate Bill 73, authored by Senator Scott Wiener (D-San Francisco), ends the prohibition against probation and suspended sentencing for drug crimes, including possessing more than 14.25 grams of illegal drugs, agreeing to sell or transport opiates or opium derivatives, planting or cultivating peyote, some forging or altering prescription crimes, and other similar non-violent drug-related crimes.

According to SB 73, the bill would not end the ability of judges to administer mandatory minimum length jail sentences. It would also not end laws that require jail time for many other drug offenses or remove probation ineligibility for those who had previously committed drug felonies.

Senator Wiener wrote the bill earlier this year to better address drug addiction treatment and to stop mass non-violent crime imprisonments. “Our prisons and jails are filled with people, particularly from communities of color, who have committed low-level, nonviolent drug offenses and who would be much better served by non-carceral options like probation, rehabilitation and treatment,” Wiener said in a statement on Tuesday. “It’s an important measure that will help end California’s system of mass incarceration.”...

However, law enforcement groups reiterated on Tuesday and Wednesday that the removal of mandatory minimums would lead to side effects such as an increase of drug use, a rise in drug sales, and a rise in drug-related crimes.  “SB 73 sets a dangerous precedent and would jeopardize the health and safety of the communities we are sworn to protect,” said the California Police Chiefs Association in response to the signing.

Still time to register for "Understanding Drug Sentencing" conference former AG Eric Holder and Piper Kerman keynote

I first noted here the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice set for October 7-8, 2021, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  On the eve of the event, folks can still register separately for each of the events on Thursday, for all Friday events, on the Agenda page. 

As the agenda page details, day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  The Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice will feature Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

REMINDER: This week for "Understanding Drug Sentencing" conference feature keynote with former AG Eric Holder and Piper Kerman

I flagged here a few weeks ago the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice which is now only days away as it is set for October 7-8, 2021.  This event formally titled "Understanding Drug Sentencing and its Contributions to Mass Punishment," and I will here note again the main event page and this overview:

Join the Drug Enforcement and Policy Center and the Academy for Justice October 7-8, 2021 to explore the myriad issues surrounding drug sentencing and its contribution to mass incarceration and mass punishment during this major symposium.  In addition to academics, researchers, and advocates discussing sound drug sentencing policies, this event also includes judges, current and former prosecutors, defense attorneys, and justice-involved individuals sharing their perspectives on drug sentencing practices.  The symposium will take place virtually.

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

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

Registration

Separate registrations are provided for each day’s events.  Attendees may register separately for each of the events on Thursday, for all Friday events, or both.  See the Agenda page for details and registration links.

As the agenda page details, on day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  Here is the summary description of a discussion that I will have the honor of moderating:

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, an exciting new addition to the event schedule is a screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  One can register for this event, taking place Thursday, October 7 at 5pm EDT.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate.  But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

More great Inquest materials, including critical overview of federal drug control history

I hope readers are not tired of all my blogging about Inquest, "a decarceral brainstorm," because the site continues to publish must-read essays and other great materials that remain so very blogworthy.  Since my last posting, the site has posted these great new reads:

From Sharlyn Grace, "‘Organizers Change What’s Possible’: Before bold, decarceral changes can become a reality, community organizers tirelessly move the policy needle in other ways. Here’s how they did it in Illinois."  

"‘We Are Men’: On the 50th anniversary of a flashpoint of the American penal system, the cries of Attica still resonate today."

From Patricia Richman & Diane Goldstein, "Follow the Science: Federal law enforcement has long called the shots in the field of drug scheduling. But in the case of fentanyl analogues, Congress has a chance to lead — by doing nothing."

The last of these pieces provides an especially effective account of the federal government's "50-year campaign to tilt the balance in drug-control decision making away from science and towards enforcement, criminalization, and incarceration."  Here is a taste (with links from the original):

Since the dawn of modern drug policy, the United States has pretended to hew to a dual approach to illicit drugs, one that emphasizes law enforcement and public health in roughly equal measure.  That duality is a farce: Federal funding for enforcement has historically dwarfed public health and other demand-reduction strategies, and 50 years of the same approach to drug policy have shown that the whole enterprise has been a spectacular failure.

To this day, headlines still abound with reported large-scale drug seizures and ever-present arrests, but none of this has reduced the demand that drives the supply.  The overdose crisis, which has run parallel to the war on drugs for decades, is “the clearest indictment so far of the failure of prohibition to curb drug use,” as experts in drug policy recently put it. Meanwhile, tens of millions of Americans continue to struggle with substance-use disorder and its consequences.  And enforcement policies have come at an unfathomable cost, sending far too many young men of color to crowd our prisons, leaving broken families and communities in their wake.

After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?

I was very excited when earlier this week the US House voted 361-66 to pass the EQUAL Act to end the statutory disparity between powder and crack cocaine sentences.  I was also pleased to see this follow-up press release from my GOP senator headlined "Portman, Senate Co-Sponsors Laud House Passage of EQUAL Act."  Here is the text:

U.S. Senators Rob Portman (R-OH), Cory Booker (D-NJ), Rand Paul (R-KY), Dick Durbin (D-IL), Thom Tillis (R-NC), and Patrick Leahy (D-VT), the bipartisan Senate sponsors of the EQUAL Act, issued the below statement following the passage of the EQUAL Act in the House of Representatives by a bipartisan vote of 361-66.

“Today, House Republicans and Democrats joined together in passing the EQUAL Act, legislation that will once and for all eliminate the unjust federal crack and powder cocaine sentencing disparity.  Enjoying broad support from faith groups, civil rights organizations, law enforcement, and people of all political backgrounds, this commonsense bill will help reform our criminal justice system so that it better lives up to the ideals of true justice and equality under the law.  We applaud the House for its vote today and we urge our colleagues in the Senate to support this historic legislation.”

Ohio eliminated the crack-powder sentencing disparities back in 2011.

Along with bipartisan support in Congress, this landmark legislation has support from groups across the political spectrum, including the National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Digital Liberty, Faith and Freedom Coalition, ALEC Action, R Street Institute, National Association for Public Defense, American Civil Liberties Union, Sentencing Project, Fair Trials, FreedomWorks, Center for American Progress, Drug Policy Alliance, Jesuit Conference, Black Public Defender Association, Dream Corps JUSTICE, Federal Public and Community Defenders, Innocence Project, National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, Taxpayers Protection Alliance, and Tzedek Association.

So three notable GOP Senators from pretty red states are co-sponsors of the EQUAL Act in the Senate, and a wide array of right-leaning advocacy groups are also eager to see this pass.  And, to highlight again the House vote specifics, roughly twice as many GOP reps voted for the EQUAL Act as voted against it.  If this same breakdown happened on the Senate side, there would be over 80  total votes for passage of the EQUAL Act in the Senate.  Even if only half of GOP Senators support the EQUAL Act, that makes 75 votes in the Senate.  And, of course, only 10 GOP votes would be needed to end any filibuster, which I presume Senator Cotton would launch to gum up the works, to permit a floor vote.

So, if ever there was a federal criminal justice reform bill that should be a relatively easy lift, I would hope this is it.  And yet, I have not seen any advocates talk as if Senate action is imminent or even all that likely.  As I mentioned to a Vice News reporter who wrote here about the House vote, an average of more than four persons are sentenced in federal court for crack offenses every single week day, and many tends of thousands of (disproportionately black) offenders have been sentenced unfairly now for a full 35 years since the crack/powder disparity first became law way back in 1986.  There is no need or value to waiting to finally make all federal cocaine offenses subject to the same sentencing rules, and so I hope the Senate might move swiftly.  But, as is always the case it seems when in comes to Congress, I do not think there is reason to be optimistic.  Sigh.

(Oh, and more more point while I am bemoaning Beltway activities (or lack thereof): even if the EQUAL Act were to move forward quickly in the Senate, I do not think it currently provides emergency authority for the US Sentencing Commission to change the crack guidelines AND the US Sentencing Commission is currently inert until Prez Biden nominates a slate of Commissioners and those folks garner Senate confirmation.  Fortunately, because the guidelines are advisory, district judges could ignore the disparate crack guidelines even while still in place after passage of the EQUAL Act.  But then again, those disparate guidelines can and should be ignored now, and yet they are still followed in many cases and still create a benchmark that shapes and distorts the sentencing process.)

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

Register for 2021 Menard Family Lecture on Drug Policy and Criminal Justice and other great drug sentencing events

In this post last week, I noted the exciting event taking place on October 7-8 titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  In addition to again highlighting the full symposium (and urging everyone to register for all the panels), I wanted to be sure to give some extra attention to the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" scheduled for Thursday, October 7 from 12:30-2pm EDT.  Here again is the summary description of a discussion that I will have the honor of moderating (along with this registration link):

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, I wanted also to note an exciting new addition to the event schedule with a film screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate. But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences

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

Barack Obama at Howard University gave a 2007 campaign speech — exactly 14 years ago today — assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."   Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

But in early fall 2021, and despite the deep divisions on so many political issues, the vast majority of US Representatives spoke together today to say that federal law should no longer sentence crack and powder cocaine offense differently.  This Hill article explains:

The House passed legislation on Tuesday that would eliminate the federal disparity in prison sentences for crack and powder cocaine offenses, in an effort to enact criminal justice reform on a bipartisan basis. The bill, which lawmakers passed 361-66, is meant to address a gap that its proponents say has largely fallen on Black people and other people of color.

The House passed the measure handily, but the vote divided Republicans. A majority of House Republicans voted for the bill with all Democrats, but the 66 votes in opposition all came from the GOP....

The Anti-Drug Abuse Act of 1986, a law signed by then-President Reagan as part of the “War on Drugs,” established a five-year minimum sentence for possessing at least five grams of crack, while an individual would have to possess at least 500 grams of powder cocaine to receive the same sentence. A 2010 law called the Fair Sentencing Act reduced the cocaine sentencing disparity for pending and future cases, but did not fully eliminate it. And a criminal justice reform bill enacted in 2018 under former President Trump allowed people convicted prior to passage of the 2010 law to seek resentencing.

Under the bill the House passed on Tuesday, defendants who were previously convicted for crack cocaine offenses would also be allowed to petition for sentence reductions.

Rep. Louie Gohmert (R-Texas), a former judge, said the measure was a “a great start toward getting the right thing done” as he recalled dealing with cocaine cases. “Something I thought Texas did right was have a up to 12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they've got a better chance of making it out, understanding just how addictive those substances are,” Gohmert said during House floor debate.

The legislation now heads to the Senate, where at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A companion bill introduced by Sen. Cory Booker (D-N.J.) currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Ky.) and Thom Tillis (N.C.).

I lack knowledge about the ways and means for this kind of bill to get a vote in the Senate soon, but I feel pretty confident that it would get similarly strong support in that cambers if and whenever a vote goes forward. I hope such a vote goes forward soon, since we have all waited more than long enough for more sensible sentencing in this arena.

A few prior recent related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine" 
• House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

"Understanding Drug Sentencing" conference feature keynote with former AG Eric Holder and Piper Kerman

After pandemic delays in the hope we could do an in-person event, I am a bit sad that a conference organized by the Drug Enforcement and Policy Center and the Academy for Justice now set for October 7-8, 2021, is still going to have to be on-line.  But, of course, the upside is that everyone all over the country and the world can now attend this event formally titled "Understanding Drug Sentencing and its Contributions to Mass Punishment." The main event page is here, with this overview:

Join the Drug Enforcement and Policy Center and the Academy for Justice October 7-8, 2021 to explore the myriad issues surrounding drug sentencing and its contribution to mass incarceration and mass punishment during this major symposium.  In addition to academics, researchers, and advocates discussing sound drug sentencing policies, this event also includes judges, current and former prosecutors, defense attorneys, and justice-involved individuals sharing their perspectives on drug sentencing practices.  The symposium will take place virtually.

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

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

Registration

Separate registrations are provided for each day’s events. Attendees may register separately for each of the events on Thursday, for all Friday events, or both.  See the Agenda page for details and registration links.

As the agenda page details, on day one of the symposium (exactly two weeks from today), there will be the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  Here is the summary description of a discussion that I will have the honor of moderating:

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

Senator Cotton: "our severe federal drug sentences are ineffectual, so let's not try to reform them"

Senator Tom Cotton can usually be relied upon to provide the "tough-and-tougher" perspective on federal criminal justice laws and policies, and he yet again plays the role of cruel Bluto via this new National Review commentary.  The piece is fully headlined "No More Jailbreaks: Republicans should oppose Democratic efforts to reduce or soften sentencing for drug crimes."  The first paragraph of the piece does not exactly say what I have in quotes in the title of this post, but it strikes me as pretty close:

Last year, for the first time in American history, more than 100,000 Americans died as a result of drug overdoses and homicides.  This deadly contagion of crime continues to afflict our communities and even shows signs of worsening.  Yet politicians in Washington plan to reduce federal sentences for criminals and release thousands of drug traffickers and gang members back onto the streets.

The rest of the piece goes on to largely mischaracterizes various current reform bills — e.g., I believe Senator Cotton is referencing the bill prohibiting sentence enhancements based on acquitted conduct when he assails a proposal "prohibit judges from taking into account certain past criminal activity in sentencing" — and does so using all sorts of silly rhetoric about "jailbreak" bills while making a bizarre claim that small reforms to the federal sentencing system might somehow "hurt the American rule of law and render our federal prison system impotent." 

Senator Cotton never tires of beating the drum for more and more and more incarceration in the United States, despite the fact we remain the most incarcerated nation in the world.  Notably, though, as he rails against the FIRST STEP Act, he fails to note that this reform was championed by Prez Trump and many on the far right of his party.  And most of those on the GOP side who pushed for the FIRST STEP Act are also supportive of additional federal reforms. Given that Senator Cotton these days seems to be one of the very few, even on the GOP side of the aisle, to be calling for "tough-and-tougher" lock-them-all-up approaches to complicated problems, perhaps we ought all just marvel at what it looks like as he spits into the criminal justice reform wind.

More than two dozen attorneys general urge Congress to extend crack retroactivity to offenders left behind by Terry

Back in June, as discussed here, the Supreme Court embraced a limiting interpretation in Terry v. US, No. 20–5904 (S. Ct. 2021), as to who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act.  As detailed in this press release from the Michigan Attorney General, this past week "a bipartisan coalition of 25 attorneys general [signed a letter] urging Congress to amend the First Step Act and extend critical resentencing reforms to individuals convicted of the lowest-level crack cocaine offenses."  The full letter is available at this link, and here are excerpts from the start and close of the letter:

As our jurisdictions’ Attorneys General, we are responsible for protecting the health, safety, and well-being of our residents. Although our jurisdictions vary in size, geography, and political composition, we are united in our commitment to an effective criminal justice system that safeguards the communities of our states. To that end, a bipartisan coalition of Attorneys General supported the passage of the First Step Act of 2018 — landmark legislation that brought common sense improvements to myriad aspects of the criminal justice system. Central to these reforms was retroactive relief for individuals sentenced under the discredited 100-to-1 crack-to-powder cocaine ratio that Congress abolished in 2010. Following the Supreme Court’s recent opinion in Terry v. United States, however, the lowest level crack cocaine offenders remain categorically ineligible for resentencing. We write today to urge Congress to amend the First Step Act, and to clarify that its retroactive relief applies to all individuals sentenced under the prior regime....

There is no reason why [lowest-level offenders] — and these individuals alone — should continue to serve sentences informed by the now-discredited crack-to-powder ratio. Discretionary relief is unambiguously available to serious dealers and kingpins sentenced under the prior regime; extending Section 404’s scope would simply allow individual users and other low-level crack cocaine offenders to have the same opportunity for a second chance. We therefore urge Congress to clarify that Section 404 of the First Step Act extends to all individuals convicted of crack cocaine offenses and sentenced under the 100-to-1 ratio—including the lowest level offenders.

"A History of Early Drug Sentences in California: Racism, Rightism, Repeat"

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

For the past 100 years, harsh drug sentences have had extraordinary support from the public.  Historically enthusiasm for drug prohibition often coincides with affinities for summary justice and authoritarian social control.  Escalations of drug sentences in California from 1881 to 1961 followed a pattern of collective myth making and value signaling that insisted opiates, cocaine, and cannabis were extremely dangerous, led to other crime, and prevalently were used and sold by immigrants and other despised groups.  Demands for severe punishment seemed to peak twice, in the 1920s and 1950s, in response to exaggerated threats such as “dope peddlers” targeting children and profitable “dope rings” controlled by subversive foreigners.  Amplified by a self-seeking, robust news media and a multitude of fraternal, civic, and religious organizations, the frightful construction of illicit drugs seemed to demand an uncompromising response. Increasing terms of incarceration seemed direct, simple, and quantifiable.

But white voters always understood that drug laws targeted immigrants and communities of color, and law enforcers used extreme penalties as leverage to pursue corrupt and racist prerogatives unrelated to reducing drug use.  Drug penalties in California were developed over many decades with almost extreme levels of participation by anti-drug activists and law enforcers.  Appearing somehow scientific, the resulting arrays of penalties implied that the cruelest sentences were reserved for the truly blameworthy, when in fact they were reserved for the marginalized.  Moreover, several legal conventions born of these penalty structures — mandatory minimums, the distinction between user and seller, punishment of addiction itself, and presumptions arising from drug quantities — still exacerbate the oppressive nature of drug statutes.  As California’s drug sentences increased and complexified over the first half of the 20th century, a destructive drug law enforcement regime sanctioned by white voters was unleashed on marginalized communities in Los Angeles.

"Bridging the Gap: A Practitioner’s Guide to Harm Reduction in Drug Courts"

The title of this post is the title of this notable new report from the Center for Court Innovation and authored by Alejandra Garcia and David Lucas. Here is the first part of the report's introduction:

Drug law reforms across the country are trending toward decriminalization and public healthinformed responses, and away from the carceral strategies of the past. These historic changes are likely to impact drug court operations significantly. Fewer drug-related arrests means fewer referrals to drug courts, and a lighter hand in sentencing will reduce the legal leverage that has long been used to incentivize participation. The overdose crisis, COVID-19, and renewed demands for racial equity and legal system transformation have also given rise to a more expansive discourse around drug use, mental health, and community safety. Alongside this shift, harm reduction initiatives are being supported at the local, state and federal level on a scale never seen before.

At their inception, drug courts represented a new way of thinking about the intersection of addiction and crime in society. Offering a treatment alternative to jail or prison, the model aimed to address the harms — and ineffectiveness — of incarcerating drug users. Today, however, criminal legal system reformers are calling into question some of the model’s most defining features, which remain largely coercive and punitive. Moving forward, drug courts can expect to face increasing pressure from public health experts and harm reduction advocates to abandon the abstinence-only model, eliminate jail sanctions, and overhaul their drug testing protocols.

This document is an attempt to provide a fresh perspective on several foundational drug court practices and the inherent challenges of this work. It argues that the most effective way for drug courts to evolve — and do less harm — involves integrating the practices and principles of harm reduction. Drug courts and the harm reduction movement will continue to co-exist for some time and face similar system barriers while serving many of the same people. As such, this document represents a conversation that is new and necessary — one that aims to bridge the gap between these contrasting paradigms for the benefit of those who participate in drug courts.

Notable look at public health impacts of drug-induced homicide laws in rural North Carolina

I just came across this notable new article in the International Journal of Drug Policy by multiple authored titled "Drug induced homicide laws may worsen opioid related harms: An example from rural North Carolina." Here is its abstract:

Drug-induced homicide (DIH) laws typically allow for the prosecution of drug distribution resulting in an overdose fatality as equivalent to homicide or manslaughter. Despite vigorous debate about the appropriateness of DIH laws as a response to overdose, the public health impacts of this increasingly common prosecutorial strategy remain unknown. In this policy analysis, we take up the question of how DIH prosecutions impact local persons and communities through the lens of a high-profile DIH conviction that took place in Haywood County, a rural county located in the Appalachian region of western North Carolina. Describing insights gained from two unrelated but overlapping studies carried out in Haywood County, we identify several plausible mechanisms through which DIH laws may negatively impact public health. Among these are disruptions to the local drug market and deterrence from calling 911 when witnessing an overdose. With the number of DIH prosecutions growing rapidly, more research on the public health impacts of DIH laws is urgently needed. 

A few of many prior related posts:

• "Heroin, Murder, and the New Front in the War on Drugs" 
• Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death 
• "America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis" 
• Another look at trend to prosecute some opioid overdose deaths as homicides
• "Drug-Induced Homicide Defense Toolkit" 
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

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

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

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

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

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

Download DOJ EQUAL Act Testimony- FINAL

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

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

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

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

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

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

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

A few prior related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine" 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some related work in this space:

• "Marijuana legalization and expungement in early 2021" 
• "Ensuring Marijuana Reform Is Effective Criminal Justice Reform"
• "Leveraging Marijuana Reform to Enhance Expungement Practices"

A few of many prior recent related posts:

• "Merrick Garland, cannabis policy, and restorative justice"
• Congressional Budget Office estimates bill to end federal marijuana prohibition would reduce federal prison time "by 73,000 person-years, among existing and future inmates" 
• Noticing marijuana reform as criminal justice reform in Arizona after passage of Prop 207
• Terrific coverage at CCRC as "Marijuana expungement accelerates across the country" 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Strong extended coverage of modern drug war dynamics from NPR

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

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

• "Oregon's Pioneering Drug Decriminalization Experiment Is Now Facing The Hard Test"

• "How TV Dramas Informed And Misinformed Perceptions Of The War On Drugs"

• "Overdose Deaths Rose During The War On Drugs, But Efforts To Reduce Them Face Backlash"

• "Revisiting Two Cities At The Front Line Of The War On Drugs"

• "He Lost Nearly Everything To Addiction. Then An Arrest Changed His Life"

• "50 Years Later, Is America's War On Drugs At A Turning Point?"

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

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

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

The Honorable Asa Hutchinson, Governor, State of Arkansas

Mr. Matthew Charles, Justice Reform Fellow, FAMM

The Honorable Russell Coleman, Member, Frost Brown Todd

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

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

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

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

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

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

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

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

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

A few prior related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 

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

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

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

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

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

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

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

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

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

Prior recent related post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

William R. Underwood, Senior Fellow, The Sentencing Project

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

Kassandra Frederique, Executive Director, Drug Policy Alliance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform