Sentencing

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The Drug Czar's Blog Accidentally Admits That Drug Laws Ruin Lives

Yesterday, in a post titled "Random Drug Testing Can Save Lives," the Drug Czar once again blogged himself into a corner. The piece quotes extensively from a Kentucky newspaper article, which argues that random drug testing will save students from getting arrested:
"There was a tragedy in Scott County last week. A young man's future was ruined, and the events that took place will likely haunt him for the rest of his life.

Unless you've been on vacation, you've probably already heard that a superstar athlete on the Scott County basketball team was arrested on felony drug charges, which could result in him going to prison for as long as 10 years. [Georgetown News]

That's awful. But what does this have to do with random drug testing?

...Whether we realize it or not, the real tragedy is this young man wasn't caught sooner, through a less punitive program intended to help youthful offenders, not send them to prison. The greater tragedy, to my way of thinking, is that we, as a community and a school system, haven't seen fit to acknowledge reality and implement a random drug testing program in our high school, and perhaps our middle schools.

So what exactly did this young man do that could get him locked away for 10 years? He was arrested for 1.6 grams of crack on school grounds. Crack/powder sentencing disparity + school zone = 10 years for a one-day supply of drugs.

By conceding that this young man's life has been ruined, the Drug Czar does far more to indict our brutally unfair sentencing laws than to promote random drug testing. He is literally telling us that we should let him collect urine from our children, otherwise his drug soldiers will put them in jail for a decade.

And if that doesn't make your head spin, consider that cocaine leaves your system in 1-2 days and will rarely come up in a drug screen anyway. You can smoke crack all night on Friday and pass a drug test on Monday, so none of this whole insane conversation about saving people from crack laws with drug testing even makes sense to begin with.

Location: 
United States

Feature: Supreme Court Weighs Arguments on Limits of Judicial Discretion in Sentencing

The US Supreme Court Tuesday heard oral arguments in a pair of drug cases that will help clarify how much discretion federal judges have in sentencing under federal sentencing guidelines. When rendered, the court's opinion could impact the tens of thousands of people sentenced in the federal courts each year.

http://stopthedrugwar.org/files/supremecourt1.jpg
US Supreme Court
While one of the cases involves a man sentenced under the crack cocaine laws, which punish crack much more severely than powder cocaine, the court's decision will have no impact on the federal mandatory minimum sentence laws under which many drug offenders are subjected to lengthy prison sentences.

The court's taking up the two sentencing guideline cases comes as the nation's quarter-century-long experiment with mass incarceration is under increasing pressure. The federal prison population has expanded nearly ten-fold from 24,000 prisoners in 1982 to more than 200,000 this year, more than half of them drug offenders under the harsh regime of sentencing guidelines and mandatory minimum sentences.

The US Sentencing Commission is set to reduce the guidelines' crack-powder cocaine sentencing disparity administratively November 1 unless Congress acts to block it, though it has not yet decided whether to make the change retroactive. While the proposed reduction is slighter than advocates have called for, if made retroactive it would help about 19,500 current prisoners, most notably those serving the longer sentences, by an average of 27 months or relief -- 1,315 current prisoners would receive sentences reductions of 49 months or more. At least three bills addressing that disparity have been filed in Congress. And just yesterday, Sen. Jim Webb (D-VA), a member the Joint Economic Committee, held a hearing titled "Mass Incarceration in the United States: At What Cost?"

The Supreme Court threw the federal sentencing structure into a sort of judicial chaos when it ruled two years ago in Booker v. US, and a related case, US v. Fan Fan, that federal sentencing guidelines, which had for the past two decades limited judges' sentencing decisions to finding the proper box on a sentencing grid, were no longer mandatory, but only advisory. Since then, federal district and appellate courts have struggled to determine just what that means, with some judges sometimes handing out sentences below the guidelines, which have in turn sometimes been overturned on appeal.

The two cases before the court represent different aspects of the federal sentencing conundrum. In Gall v. US, Brian Gall was convicted of conspiracy to sell ecstasy in Iowa, but rather than sentence him to the 30-37 months in prison suggested by the guidelines, his sentencing judge gave him probation, noting that he had walked away from the conspiracy years earlier and led an exemplary life since. The probationary sentence was overturned by the 8th US Circuit Court of Appeals in St. Louis.

In Kimbrough v. US, Derrick Kimbrough was convicted of selling crack and powder cocaine in Virginia. Citing Kimbrough's military service and the controversy over the crack-powder cocaine sentencing disparity, his trial judge sentenced him to the mandatory minimum 15 years instead of the 19-22 years suggested by the guidelines. His sentence, too, was overturned, this time by the US 4th Circuit Court of Appeals in Richmond.

In Gall, the appeals court held that such an "extraordinary" departure from the guidelines required an "extraordinary" justification. In Kimbrough, the appeals court held that judges could not reject a guidelines sentence because of their disagreement with underlying sentencing policy.

In oral arguments in the two cases Tuesday, the court displayed some of the same confusion and ambivalence its previous sentencing rulings have generated on the federal bench. The court is caught between two seemingly irreconcilable goals: to ensure similar sentences for similar offenses, and to restore a measure of discretion to judges.

"It may be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory," Justice Antonin Scalia observed. But Scalia has led the bloc of the court that has moved to undo the mandatory federal guidelines scheme.

Justice Stephen Breyer, who helped author the guidelines and remains their strongest proponent on the court, accused Kimbrough's counsel, Michael Nachmanoff, of not offering the court a way out of its dilemma after Nachmanoff insisted that Booker required that judges be granted reasonable flexibility." You're saying either we have to make it [the sentencing guidelines] unconstitutional," he said, "or you have to say anything goes."

"Your position is not anything goes," Scalia jumped in in Nachmanoff's defense. "It's anything that's reasonable goes."

That led Justice Anthony M. Kennedy to ask, "How do we define 'reasonable?'" And so the argument turned in circles.

For his part, Justice Department lawyer Michael Dreeben, who argued both cases, argued that Congress intended to punish crack cocaine more seriously than powder, and judges should heed Congress' will. "For a judge to say Congress is crazy," Dreeben said, "is a sort of textbook example of an unreasonable sentencing factor."

"The guidelines are only guidelines. They are advisory," Scalia shot back, adding that sometimes sentences were too long.

While the tenor of oral arguments suggested a favorable ruling may be coming, especially for Kimbrough, observers of the court were reluctant to speculate. But they were not reluctant to talk about what it all means.

"Everyone is struggling" with the federal sentencing conundrum, said Doug Berman, professor of law at the Ohio State University Moritz College of Law and author of the Sentencing Law and Policy blog. "Most prominently, they are trying to figure out what to make of this opaque standard of reasonableness," he said.

"If the Supreme Court reverses the circuit courts and upholds the trial courts, emphasizing the discretion district court judges have to reduce sentences below the guidelines, that could have a significant impact, especially on first offenders and others with mitigating factors," Berman said.

"The national debate over the excessive penalties prescribed under the federal sentencing guidelines for low-level crack cocaine offenses has infiltrated Congress, the advocacy community and now the US Supreme Court," said Marc Mauer, executive director of The Sentencing Project. "There is nearly universal agreement that current sentences for crack cocaine offenses are unfair and ineffective. The court's action will certainly influence the policy debate," he added.

"The Supreme Court's consideration of the magnitude of discretion afforded to federal sentencing judges is a step towards creating a more just sentencing system," said Mauer. "In light of recent events in Jena, Louisiana, and concerns about disparity within the justice system, a new consciousness about the unfairness and ineffectiveness of our criminal justice system has emerged," Mauer continued.

"These cases have to be considered against the backdrop of extraordinarily long terms for minor drug offenders," Berman said. "That the government can argue that sending Kimbrough to prison for 15 years is unreasonably lenient and the length of that sentence hardly gets questioned suggests that everyone has drunk the federal sentencing guideline kool-aid," he said.

For some groups with a deep interest in justice in sentencing, whatever the Supreme Court does won't be enough. "Whatever the court decides, the real solution to unjust crack sentences lies in Congress," said Mary Price, vice president and general counsel for Families Against Mandatory Minimums. "Even if the court permits judges to avoid unjust crack sentences called for by the guidelines, many defendants will still be sentenced under unjust mandatory minimum statutes. Congress made a mistake by basing sentencing almost exclusively on one factor -- drug quantity. Judges should be permitted to sentence based on all facts about the defendant and the offense, not just quantity. These cases show why mandatory minimum sentencing laws are unwise, unnecessary, and unjust."

It goes even deeper than that, said Chuck Armsbury of the November Coalition, an anti-prohibitionist group that concentrates on freeing drug war prisoners. "No amount of Supreme Court tinkering with the sentencing guidelines can guarantee an end to sentencing disparities," he said. "Most of the sentencing disparity is due to rules and results of deal making by informants, police and prosecutors working together secretly. The justices are unlikely to admit they can't determine the fairness of a hidden system's operations," he argued. "To fix this broken system would mean to rein in police, prosecutors and the snitch system producing substantial differences in drug sentences."

That's not going to happen through the Supreme Court chipping at the edges of draconian sentencing, Armsbury said. "Even if they win, the cases under review this week will likely join a long line of previous Supreme Court cases that failed to correct wrongful sentencing practices or result in the release of thousands of over-incarcerated people, the great majority convicted of drug crimes."

Still, if further reform of the draconian federal sentencing laws comes out of this pair of cases, some drug defendants will get lesser sentences, and that's a good thing. But as the critics point out, it's not enough. The mass incarceration juggernaut has been speeding along for decades now, and it's going to require more than some Supreme Court decisions tinkering at the edges to achieve fundamental change.

Obama Comes Out Against Mandatory Minimums

It's about time. We've been concerned about Obama's perspective on drug policy, but it looks like he's coming around:

Washington, D.C. (AHN) - Sen. Barack Obama (D-IL) outlined his civil rights platform Friday, saying that if elected president, he would target racial disparities in the U.S. justice system through a host of measures, including relaxing drug sentencing laws.


"We have a system that locks away too many young, first-time, non-violent offenders for the better part of their lives - a decision that's made not by a judge in a courtroom, but all to often by politicians in Washington and state capitals around the country," Obama said. [AHN]

Obama also pledged to address the crack/powder sentencing disparity, which he's sounded reluctant to do previously.

How could anyone disagree with him? Sentencing reform has become standard fair for the democratic candidates, and I've yet to hear the republicans dispute it. Maybe, just maybe, this one issue can escape the icy death grip of partisan politics. Maybe we can all just agree to stop treating petty drug offenders like murderers and rapists. Can we give this a try? Please?

(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)
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It's Not Fair, It's Not Working: The Crack/Powder Cocaine Disparity and Racial Inequality in the Criminal Justice System

The George Washington University Law School is holding a forum to plan action to address the injustice in the disparity in federal crack and powder cocaine sentences. The discussion will focus on legislative, legal and grassroots strategies. For more information, contact Leah Kane, GWU Law School '08 at (347) 251-2111. An out-of-date 1986 federal law punishes crack cocaine offenders much more severely than other drug offenders. Ten African-Americans are prosecuted under this law for every white person, even though two-thirds of the nation's crack users are white. On October 2, 2007 the U.S. Supreme Court will hear argument whether Federal judges can depart from Federal sentencing guidelines in crack cocaine cases because they disagree with Congress' determination that the quantity of cocaine that triggers a given mandatory sentence is 100 times greater than the quantity of crack that triggers a similar sentence (Kimbrough v. U.S.). On November 1, 2007, new federal sentencing guidelines will take effect that will shorten federal crack cocaine sentences. No legislation to block this change was introduced. A different proposal to reduce crack sentences in 1995 was rejected by Congress. New legislation has been introduced in the Congress to adjust the quantities of crack cocaine and powder cocaine and the sentences they trigger, but no hearings have yet been scheduled. Speakers include: Judge Arthur L. Burnett, Sr., National Executive Director, National African American Drug Policy Coalition Ryan King, Policy Analyst, The Sentencing Project Jesselyn McCurdy, Legislative Counsel, American Civil Liberties Union Eric E. Sterling, President, Criminal Justice Policy Foundation Jasmine Tyler, Deputy Director of National Affairs, Drug Policy Alliance The moderator is Professor Paul Butler, George Washington University Law Center, former Assistant United States Attorney Please join us at this important forum. A reception follows.
Date: 
Wed, 10/03/2007 - 5:00pm
Location: 
2023 G Street NW Lisner Hall, Room 201
Washington, DC 20006
United States

Fairness of Crack Cocaine Sentencing Fundamental to Oct. 2 Supreme Court Case

[Courtesy of The Sentencing Project] At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, the United States Supreme Court will hear oral argument tomorrow in a case that touches on the controversial crack cocaine sentencing debate. The case, Kimbrough v. United States, explores the reasonableness of a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1 quantity disparity between powder and crack cocaine. The Sentencing Project submitted an amicus brief on behalf of the petitioner, Derrick Kimbrough, which argues that current drug guidelines inappropriately limit the factors that judges may consider at sentencing. Mr. Kimbrough's case stems from his 2005 guilty plea in Norfolk, VA, for possession with intent to distribute 56 grams of crack cocaine and possession of a firearm. Kimbrough, a Desert Storm veteran with no previous felony convictions, was prosecuted in federal court where penalties involving crack cocaine are harsher than in state systems. As a result, instead of receiving a sentence of about 10 years under Virginia law, he faced a federal sentencing guideline range between 19 and 22 years. Federal District Judge Raymond A. Jackson, who presided over Kimbrough's case, called the recommended guideline sentence "ridiculous" and instead sentenced Kimbrough to 15 years, the minimum required by mandatory sentencing policies. Tomorrow, the Court will consider whether Judge Jackson's decision was "reasonable" according to federal sentencing standards. For more information, visit www.sentencingproject.org/crackreform or download the amicus brief at http://sentencingproject.org/Admin/Documents/publications/dp_kimbrough.pdf.
Location: 
Washington, DC
United States

Marijuana: Decriminalization Initiative Effort Gets Underway in Joplin, Missouri

Last Friday saw the kick-off of a campaign to put a marijuana decriminalization initiative on the ballot in the southwest Missouri city of Joplin. Local, regional, and national activists gathered in front of city hall to officially launch the initiative, which would make simple possession of marijuana an administrative offense punishable by no more than a $250 fine under city ordinances.

"We are here today to introduce an opportunity for the citizens of Joplin to enact a more sensible marijuana policy," said Kelly Maddy, president of the Joplin chapter of the National Organization for the Reform of Marijuana Laws. "Over 200 people were arrested in 2005 for marijuana possession in Joplin," he continued. "This is a waste of police resources that could otherwise be allocated to more serious crime. Our cities marijuana laws are not only a waste of taxpayer money and police resources, they are by definition a failed policy."

Maddy was joined at the press conference and last weekend's Joplin Cannabis Revival by Ryan Denham, head of the Alliance for Drug Reform Policy in Arkansas, and Kris Krane, executive director of Students for Sensible Drug Policy. They came to lend their support to what will be known as the Sensible Sentencing Initiative.

Under current Joplin law, misdemeanor marijuana possession can be punished by up to a $500 fine and 100 days in jail. Joplin police do not refer possession cases to county courts unless the amount in question is 35 grams or more -- a felony under state law.

While the Ozarks and surrounding region may not, at first glance, appear to be especially receptive to marijuana law reform efforts, victories have been achieved in the area. In 2003, Columbia, Missouri, passed a lowest law enforcement priority initiative, and tiny Eureka Springs, Arkansas, did the same thing last year.

In some cases where marijuana law reforms have been passed, police and prosecutors have ignored them, as in Denver, where authorities continue to prosecute people under state law even though Denver voters voted to legalize marijuana possession in 2005. That prospect seems unlikely in Joplin if the measure passes.

In an interview with the Joplin Globe under the headline "Chief Says His Job Is to Support Public Mandates," Joplin Police Chief Lane Roberts said he would do just that. His job, he said, is to enforce the laws established by voters and elected lawmakers. "Somebody is going to say, 'you're the chief... you ought to oppose this thing,'" he said. "Somebody else will say 'you are the chief of police and supposed to be protecting our constitutional rights.' My argument is, 'yep ... you are right.'"

To qualify for the November 2008 ballot, initiative organizers need to collect 5,000 signatures, or 15% of the number of registered voters in the city. They have one year to do so.

Why Do Police Really Oppose Marijuana Legalization?

The superb efforts of our friends at Law Enforcement Against Prohibition notwithstanding, police generally oppose efforts to reform marijuana laws. Initiatives in Colorado and Nevada were vehemently contested by law-enforcement interests, who claimed that reform would invite crime and undermine community safety. Sheriff Fred Wagner of Park County, CO even tried to link marijuana reform efforts to a recent school shooting.

Intuitively, there's nothing surprising about police lobbying to retain the gratuitous powers granted them by the war on drugs. Yet, as marijuana arrests reach a new record high each year, it becomes increasingly difficult to point towards any societal benefit to these costly attacks on otherwise law-abiding Americans. Because I believe most officers really do want to protect the communities they serve and make a difference, I have often pondered their willful enforcement of, and political support for, a war that endangers communities while failing to a make a difference.

I was pleasantly surprised, therefore, to learn that Joplin, MO Police Chief Lane Roberts has pledged not to oppose a local marijuana decriminalization initiative. Roberts correctly defines his role as defending the constitution rather than opining on what the law ought to be. But he goes on to explain that officers sometimes overreact to policy changes that reduce police authority:
When asked how his officers had reacted to the decriminalization of pot possession in Oregon and in Washington State where he previously headed up departments, Roberts reclined in his office chair and smiled.

"When that law was first passed, most police officers thought that the end of the world as we know it was about to occur," he said. "But, we thought the same thing when the Miranda decision came down." [Joplin Globe]

Miranda is such a wonderful analogy for law-enforcement's knee-jerk assumption that any restriction on police power will invite pure chaos. The U.S. Supreme Court's ruling in Miranda v. Arizona that police must inform criminal suspects of their 5th Amendment right against self-incrimination before conducting interrogations provoked panic among police. Murderers and rapists would go free, we were told, and crimes of the most despicable nature would become unsolvable.

The result was nothing of the sort. Police simply became more professional. It turned out that the freakiest psycho killers still insisted on confessing their misdeeds, while the rest got taken down through good old-fashioned police work. "You have the right to remain silent…" has become a popular and familiar symbol of due process, and the horror show predicted by law enforcement has been long forgotten.

The point here is that it was the experts, the interrogation specialists themselves, who were so wrong about Miranda. Today, when police speak out against marijuana reform, they are motivated not by experience at all, but rather a fear of the unknown. Indeed, today's officers simply have no real frame of reference for what law-enforcement in a post-drug war America would look like.

I'm optimistic, however, that whatever our friends at LEAP can't explain to their colleagues will ultimately find a way to explain itself. Inevitably, the truth about drug policy reform will become self-evident each and every time it is given the opportunity to do so.

Update: I've posted a follow-up to emphasize the important point that a significant number of police officers actually do realize the drug war isn't working and continue to fight it anyway

Location: 
United States

Missouri Police Chief Promises Not to Oppose Marijuana Decrim Initiative

A pending marijuana decriminalization effort in Joplin, MO revealed the city's police chief to be a pretty decent guy. This is a textbook example of how a professional public servant regards the democratic process:

"Somebody is going to say, 'you're the chief ... you ought to oppose this thing,'" he said. "Somebody else will say 'you are the chief of police and supposed to be protecting our constitutional rights.' My argument is, 'yep ... you are right.'" [Joplin Globe]

It's such a simple concept, yet it is so often abandoned by law enforcement agencies when citizens work to reform marijuana policy. There's something very creepy about police lobbying to protect their own obscene drug war powers, and it's refreshing to hear a veteran police chief speak in defense of democracy.

Location: 
United States

Paey Starts Afresh with Call from Crist

Location: 
FL
United States
Publication/Source: 
St. Petersburg Times
URL: 
http://www.sptimes.com/2007/09/22/Pasco/Paey_starts_afresh_wi.shtml

Medical Marijuana: Bryan Epis Re-Sentenced to 10 Years in Federal Prison

Bryan Epis, the first California medical marijuana provider tried in federal court for growing marijuana, was sentenced last Friday to 10 years in federal prison -- again. Epis was convicted in 2002 of growing more than 1,000 marijuana plants and served 25 months of his original 10-year sentence before being released on appeal bond.

http://stopthedrugwar.org/files/bordenepis.jpg
David Borden and Bryan Epis at the 2005 NORML conference
The US 9th Circuit Court of Appeals had ordered the lower court to reconsider Epis' conviction, but it found him guilty again.

Epis argued all along that he was a medical marijuana patient who worked with other patients within California law at a medical marijuana grow in Chico. But prosecutors portrayed him as an entrepreneurial mastermind with plans to distribute marijuana across the state.

In an unusual move, Circuit Court Judge Frank Damrell refused prosecution requests to immediately take Epis into custody, noting that the 9th Circuit had earlier ordered him released "without comment," a move Damrell described as "unprecedented in my experience. The law requires such an action be supported by exceptional circumstances, so I can only assume that they found exceptional circumstances," Damrell said. "My suspicion is the 9th Circuit would grant bail again," the judge added.

Damrell set an October 22 hearing date for a forthcoming motion for bail pending appeal.

Epis' attorney, Brenda Grantland, has argued that prosecutor Samuel Wong and DEA agents intentionally misinterpreted documents seized at Epis' home when it was searched in June 1997. Wong described the documents as a statewide marketing plan, saying Epis' "goal was to go statewide and use Proposition 215 as a shield to manufacture and traffic marijuana."

Grantland told Damrell that the 9th Circuit was "very interested" in her allegations of prosecutorial misconduct and perjury by narcotics officers in the case. Damrell agreed that the appeals court "may have some interest" in the issues Grantland raised.

For his part, Epis told the court he was a martyr for medical marijuana.
"If Proposition 215 had not passed, I wouldn't be standing here today," Epis told Damrell. "I'm being prosecuted because I have a heart. I've seen too many people suffer and die from cancer and AIDS not to try to help them. I'm not ashamed of what I did, but I am sorry for my family."

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