Sentencing

RSS Feed for this category

A Few Pardons Today -- Meanwhile the Pardon Attorney's Web Site Hasn't Been Updated Since the Clinton Administration

In addition to the good news about the crack sentencing reductions being retroactive, another piece of modest good news is that Pres. Bush granted some clemencies, including a few drug offenders. Via the Associated Press and CNN:
  • Jackie Ray Clayborn, of Deer, Arkansas, sentenced in 1993 to five months in prison, two years of supervised release and $3,000 in fines on marijuana charges.
  • John Fornaby, of Boynton Beach, Florida, convicted in 1991 of conspiring to distribute cocaine. He served three years in prison.
  • Bush cut short the 1992 prison sentence of crack cocaine dealer Michael Dwayne Short of Hyattsville, Maryland, who will be released on February 8 after serving 15 years of his 19-year sentence.
Let's include this one too, just to keep things in the holiday spirit (even though we don't oppose having reasonable regulations on legalized substances):
  • William James Norman of Tallahassee, Florida, convicted in 1970 for possessing and running an unregistered distillery that did not carry the proper signage and illegally produced alcoholic drinks made from mash. He was sentenced to three years probation.
Clemencies are a good thing, so I feel bad about using a negative-sounding headline. But it's important, because these few additional actions still leave George W. Bush far behind other presidential administrations in use of the pardon powers, even behind the pardon-parsimonious George Herbert Walker Bush. Interestingly -- and perhaps not coincidentally -- the US Pardon Attorney's office has not updated the sections of their web site listing clemency recipients and statistics since the end of the Clinton administration. They don't even include George W. Bush in the list of presidents. (I've saved copies of those two pages to prove it, in case they finally get around to updating those pages.) More importantly, we've heard from list members whose family members have clemency petitions in that not only have their loved ones not been released, they haven't even heard back from the office with any decision, not even a "no." If I remember correctly, FAMM has charged that the backlog in the office is literally in the thousands. Come on George, I've said it before, and I'm saying it again -- WE WANT PARDONS!!!!
Location: 
Washington, DC
United States

U.S. Recommends Early Release for 19,500 Crack Offenders

The sentencing disparity that punishes offenders 100 times worse for crack than for powder cocaine has taken a double hit this week. First the Supreme Court ruled 7-2 that judges may depart from unreasonable federal sentencing guidelines. Then, today, the U.S. Sentencing Commission voted to make the recently revised sentencing guidelines retroactive, meaning that incarcerated offenders may request early release.
Today in an historic vote, the Commission unanimously agreed to allow prisoners serving crack cocaine sentences to seek sentence reductions that went into effect on November 1. Retroactivity will affect 19,500 federal prisoners, almost 2,520 of whom could be eligible for early release in the first year. Federal courts will administer the application of the retroactive guideline, which is not automatic. Courts may refuse to grant sentence reductions to individuals if they believe they could pose a public safety risk.

"The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced," said Julie Stewart, president and founder of FAMM. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more - mothers, fathers, daughters and sons - who anxiously wait for them to return home," said Stewart. [FAMM]
It took 20 years to even begin taking the teeth out of this vicious law, but it's clear we've now crossed a threshold. Once the curtain was pulled back and the utter racism and ignorance that defined federal cocaine sentencing was revealed for what it was, we witnessed leading politicians jumping on the bandwagon in favor of reform.

So often, we're told by fair-weather supporters of this work that we're naïve; that the power structure forever feeds on the misery of the downtrodden; that the insatiable prison industrial complex and its carnivorous lobbyist minions will always call the shots and that we're pissing in the wind if we think the truths we speak will find traction amidst the marketplace of foul and corrupt ideas that dominate the political culture in our nation's capital.

Indeed, this is a steep uphill battle. But in so many ways, we've moved beyond the initial stage of demonstrating the need for change. They know. Our mission now is to help those in power convert these observations into ideas, then into persuasive words, and finally into decisive actions. Politicians are not always blind to right and wrong, rather they hedge their bets and often fear the political consequences of true leadership above the social consequences of intransigence.

These matters are far from resolved, but today brought hope to 19,500 non-violent drug offenders and their families. It is a victory for justice, a rebuke of the racist drug war doctrine, and, with patience and some luck, a humble sign of bigger things to come.
Location: 
United States

Crack Sentencing Changes Made Retroactive!

[Ed: Good to see the vote was unanimous -- someone tell Hillary Clinton. I heard the executive director of the Sentencing Commission speak at a conference last spring, and she was very passionate about wanting to see good things happen. It looks like the commissioners felt the same way. I've pasted here a few releases and announcements from various groups about this below. - Dave] News Release U.S. Sentencing Commission One Columbus Circle NE Washington, DC 20002-8002 For Immediate Release December 11, 2007 U.S. SENTENCING COMMISSION VOTES UNANIMOUSLY TO APPLY AMENDMENT RETROACTIVELY FOR CRACK COCAINE OFFENSES Effective Date for Retroactivity Set for March 3, 2008 WASHINGTON, D.C. (December 11, 2007) — The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008. Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense. On November 1, 2007, after a six-month congressional review period, the Commission’s amendment to the Federal sentencing guidelines for crack cocaine offenses took effect. The amendment was intended as a step toward reducing some of the unwarranted disparity currently existing between Federal crack cocaine and powder cocaine sentences. The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders, as this amendment could. The Commission made its decision on retroactivity of the crack cocaine amendment after months of deliberation and years of examining cocaine sentencing issues. It solicited public comment on the issue of retroactivity and received over 33,000 letters or written comments, almost all of which were in favor of retroactivity. Last month, it held a full-day hearing on the issue of retroactivity and heard from key stakeholders in the federal criminal justice community. The Commission considered a number of factors during its deliberations, including the purpose for lowering crack cocaine sentences, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment. Mindful of public safety and judicial resource concerns, the Commission today issued direction to the courts on the limited nature of this and all other retroactive amendments and on the need to consider public safety in each case. The Commission delayed the effective date of its decision on retroactivity in order to give the courts sufficient time to prepare for and process these cases. The Commission’s actions today, as well as promulgation of the original amendment for crack cocaine offenses, are only a partial step in mitigating the unwarranted sentencing disparity that exists between Federal powder and crack cocaine defendants. The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy. The Commission has consistently expressed its readiness and willingness to work with Congress and others in the criminal justice community to address this very important issue. The bipartisan United States Sentencing Commission, an independent agency in the judicial branch of the federal government, was organized in 1985 to develop national sentencing policy for the federal courts. The resulting sentencing guidelines help to ensure that similar offenders who commit similar offenses receive similar sentences. http://www.ussc.gov/PRESS/rel121107.htm For Immediate Release Date: December 11, 2007 Sentencing Commission votes in favor of crack cocaine retroactivity WASHINGTON, D.C.: Families Against Mandatory Minimums (FAMM), the nation's leading sentencing reform organization with 13,000 members -- many of whom are incarcerated people and their families -- praises the U.S. Sentencing Commission for its courage and leadership on improving crack cocaine sentencing policies for future defendants and current prisoners. Today in an historic vote, the Commission agreed to allow prisoners serving crack cocaine sentences to seek sentence reductions that went into effect on November 1. Retroactivity will affect 19,500 federal prisoners, almost 2,520 of whom could be eligible for early release in the first year. Federal courts will administer the application of the retroactive guideline, which is not automatic. Courts may refuse to grant sentence reductions to individuals if they believe they could pose a public safety risk. "The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced,” said Julie Stewart, president and founder of FAMM. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more - mothers, fathers, daughters and sons - who anxiously wait for them to return home," said Stewart. Many FAMM members, including Lamont and Lawrence Garrison, will benefit from retroactivity. Arrested just months after graduating from Howard University, Lamont received 19 years and Lawrence received 15 years, respectively, after being accused of conspiring to distribute crack and powder cocaine. Both brothers could receive sentence reductions of between three and four years. The U.S. Sentencing Commission has repeatedly advised Congress since 1995 that there is no rational, scientific basis for the 100-to-1 ratio between crack and powder cocaine sentences. The Commission has also identified the resulting disparity as the "single most important" factor in longer sentences for blacks compared to other racial groups. Yesterday, the Supreme Court ruled that judges can consider the unfairness of the 100-to-1 ratio between crack cocaine and powder cocaine sentences and may impose a sentence below the crack guideline in cases where the guideline sentence is too severe. However, neither the new guideline nor its retroactivity changes the statutory mandatory minimums that retain the 100-to-1 quantity disparity between crack and powder cocaine. "To insure equal justice for all defendants, Congress must act to address the mandatory minimums that created the cocaine sentencing disparity in 1986," said Stewart. FAMM spearheaded the effort to make the crack cocaine guideline change apply to people already in prison, helping generate over 33,000 letters to the Sentencing Commission in support of retroactivity. FAMM members from across the country also attended the Commission's public hearing on retroactivity in Washington, D.C. on November 13 and the vote on December 11, bearing photographs of their incarcerated loved ones. Families Against Mandatory Minimums (FAMM) advocates for fair and proportionate sentencing laws. For more information, visit www.famm.org or email media@famm.org. UNITED STATES SENTENCING COMMISSION APPROVES CRACK REFORM FOR FEDERAL PRISONERS The day after the Supreme Court affirmed a judge's decision to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, the United States Sentencing Commission today voted unanimously to make retroactive its recent guideline amendment on crack cocaine offenses. The USSC's decision now makes an estimated 19,500 persons in prison eligible for a sentence reduction averaging more than two years. Releases are subject to judicial review and will be staggered over 30 years. The Sentencing Project applauds the USSC for responding at this heightened time of public awareness about excessive penalties and disparate treatment within the justice system. "The Commission's decision marks an important moment not only for the 19,500 people retroactivity will impact, but for the justice system as a whole," stated Marc Mauer, Executive Director of The Sentencing Project. "Today's action, combined with the Court's decision yesterday, restores a measure of rationality to federal sentencing while also addressing the unconscionable racial disparities that the war on drugs has produced." The Sentencing Project estimates that once the sentencing change is fully implemented, there will be a reduction of up to $1 billion in prison costs. Because African Americans comprise more than 80% of those incarcerated for crack cocaine offenses, the sentencing reform will also help reduce racial disparity in federal prisons. The Commission sets the advisory guideline range that federal judges use when sentencing defendants. In May the Commission recommended statutory reforms and proposed to Congress an amendment to decrease the guideline offense level for crack cocaine offenses. The amendment went unchallenged by Congress and went into effect on November 1st. The Commission's action today makes that guideline change retroactive to persons sentenced prior to November 1st. The guideline changes do not affect the mandatory minimum penalties that apply to crack cocaine, which can only be addressed through Congressional action. "Justice demands that Congress take the next step and eliminate the harsh mandatory minimums for low-level crack cocaine offenses," said Mauer. The Commission's vote comes a day after the United States Supreme Court ruled 7-2 in Kimbrough v. United States that 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 was permissible. In June, Sen. Joseph Biden introduced the Drug Sentencing Reform and Kingpin Trafficking Act of 2007, legislation which would equalize the penalties for crack and powder cocaine offenses. Biden's bill, S. 1711, aims to shift federal law enforcement's focus from street-level dealers towards high-level traffickers.
Location: 
United States

Supreme Court Rules in Favor of Sentencing Fairness for Crack Cocaine

[Courtesy of The Sentencing Project] SUPREME COURT RULES THAT JUDGES MAY CONSIDER HARSHNESS OF CRACK POLICY IN SENTENCING Decision Comes on Eve of U.S. Sentencing Commission Vote to Reduce Crack Sentences for Prisoners The Supreme Court ruled 7 to 2 today that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1quantity disparity between powder and crack cocaine was permissible. Justice Ruth Bader Ginsburg wrote the decision in the case, Kimbrough v. U.S. (06-6330). "At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, Executive Director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses." The Court's decision in Kimbrough comes at a time of unprecedented interest in reforming the mandatory minimum sentencing policy for crack cocaine offenses. Bipartisan legislation has been introduced in Congress and hearings are expected early next year. Moreover, tomorrow, the U.S. Sentencing Commission is expected to vote on whether its recent sentencing guideline reduction for crack cocaine offenses will apply retroactively to people currently serving time in prison. Review today's decision in Kimbrough at: http://www.scotusblog.com/wp/wp-content/uploads/2007/12/06-6330.pdf
Location: 
Washington, DC
United States

Some Good News from the Supreme Court on Crack Sentencing

Update: Lots of analysis today at the Sentencing Law and Policy blog There was some good news today from the US Supreme Court on the subject of crack cocaine sentencing. It seems like it should be helpful in other kinds of sentencing as well. The following update, forwarded from The Sentencing Project's listserv, sums it up. I'm pleasantly surprised that this passed by a 7-2 margin -- perhaps judges will feel a little freer to give lighter sentences as a result.
SUPREME COURT RULES THAT JUDGES MAY CONSIDER HARSHNESS OF CRACK POLICY IN SENTENCING Decision Comes on Eve of U.S. Sentencing Commission Vote to Reduce Crack Sentences for Prisoners The Supreme Court ruled 7 to 2 today that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1quantity disparity between powder and crack cocaine was permissible. Justice Ruth Bader Ginsburg wrote the decision in the case, Kimbrough v. U.S. (06-6330). "At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, Executive Director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses." The Court's decision in Kimbrough comes at a time of unprecedented interest in reforming the mandatory minimum sentencing policy for crack cocaine offenses. Bipartisan legislation has been introduced in Congress and hearings are expected early next year. Moreover, tomorrow, the U.S. Sentencing Commission is expected to vote on whether its recent sentencing guideline reduction for crack cocaine offenses will apply retroactively to people currently serving time in prison. Review today's decision in Kimbrough at: http://www.scotusblog.com/wp/wp-content/uploads/2007/12/06-6330.pdf
Location: 
Washington, DC
United States

Sentencing: Racial Disparities in Drug Sentences the Norm in the Nation's Most Populous Counties, Study Finds

A report released Tuesday by the Justice Policy Institute has found that nearly all of the nation's most populous counties imprisoned blacks for drug offenses at a higher rate than whites. Out of the 198 counties examined in the report, 193 of them, or 97%, showed racial disparities in sentencing.

The report, The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties, found that counties with higher poverty rates, larger black populations, and larger police or judicial budgets imprison people for drug offenses at higher rates than those who don't. Those relationships held whether the county had a high crime rate or not.

The five US counties with the highest racial disparities are, in rank order: Foryth County (Winston-Salem), North Carolina; Onondaga County (Syracuse), New York; Dane County (Madison), Wisconsin; Kane County (west Chicago suburbs); Illinois; and Westmoreland County (east of Pittsburgh), Pennsylvania.

Among the major findings:

  • While tens of millions of people use illicit drugs, prison and policing responses to drug behavior have a concentrated impact on a subset of the population. In 2002, there were 19.5 million illicit drug users, 1.5 million drug arrests, and 175,000 people admitted to prison for a drug offense.
  • While African Americans and whites use and sell drugs at similar rates, African Americans are ten times more likely than whites to be imprisoned for drug offenses.
  • Of the 175,000 admitted to prison nationwide in 2002, over half were African American, despite the fact that African Americans make up less than 13 percent of the US population.
  • There is no relationship between the rates at which people are sent to prison for drug offenses and the rates at which people use drugs in counties. For example, although Rockingham County, NH, has a larger percent of its population reporting illicit drug use, Jefferson Parish, LA, sent more people to prison for a drug offense at a rate 36 times that of Rockingham.
  • Higher county drug prison admission rates were associated with how much was spent on policing and the judicial system, higher poverty and unemployment rates, and the proportion of the county's population that is African American.

"The exponential removal of people of color who have substance abuse problems from their communities and into prisons undermines and destabilizes neighborhoods -- it does not make them safer," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "Drug addiction doesn't discriminate but our drug policies do."

Researchers attributed disparate policing practices, disparate treatment before the courts, mandatory minimum drug sentencing laws, and differences in the availability of drug treatment for African Americans compared with whites as reasons for the significant racial disparities seen in drug imprisonment rates.

"Laws -- like drug laws -- that are violated by a large percentage of the population are particularly prone to selective enforcement," said Phillip Beatty, coauthor of the study. "The reason African Americans are so disproportionately impacted may, in part, be related to social policy, the amount spent on law enforcement and judiciary systems, and local drug enforcement practices."

While the report does not make detailed recommendations for counties, the authors suggest that policymakers consider reforming drug policies to include:

  • De-escalation of the "drug war." Drug enforcement practices are focused in the African-American community, despite evidence that they are no more likely than their white counterparts to be engaged in drug use or drug delivery behaviors. Local, state and federal policymakers should closely examine racial disparities in local drug imprisonment rates that result from these practices, and consider alternative approaches to reducing drug use and sales.
  • Careful consideration of public safety funding. While policing and judicial expenditures need to be prioritized to help deal with violent crime, other ways to promote public safety would include investments in public health policies and services that reduce poverty and unemployment.
  • A shift to evidence-based drug enforcement practices. Reform drug enforcement practices, and collect data to analyze the fairness of local drug enforcement tactics and policies.

"Rather than focus law enforcement efforts on drug-involved people who bear little threat to public safety, we should free up local resources to fund treatment, job training, supportive housing, and other effective public safety strategies," said Jason Ziedenberg, executive director of the Justice Policy Institute.

Is Rudy Giuliani Shaping Hillary Clinton's Stance on Drug Laws?

Democratic presidential contenders are in universal agreement that it's time to abolish the racist and irrational sentencing disparity that punishes offenders 100 times worse for crack than for powder cocaine. But after the change is made, Hillary Clinton says that people who've already been imprisoned by this racist law should remain in jail. Why? A campaign advisor says it's because she's scared of what Giuliani will say.

Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges.

"In principle I have problems with retroactivity," she said. "It’s something a lot of communities will be concerned about as well." [The Politico]

Clinton pollster Mark Penn explains why her position has everything to do with her fear of Rudy Giuliani:

"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."

Speaking in Florida earlier this month, Giuliani said he "would not think we would want a major movement in letting crack cocaine dealers out of jail. It doesn't sound like a good thing to do."

Ah, but it is. These are people who shouldn't be in jail. And Clinton knows it. Punishing people 100 times worse because their cocaine isn't in powder form is so transparently insane that we really can dispense with the hollow rhetoric about "letting crack cocaine dealers out of jail." The law is so twisted you don’t even have to be a dealer to end up in jail for years.

If Clinton is really this scared of Giuliani, where does it end? The campaign is far from over. Will she continue to shift around uncomfortably every time Giuliani challenges her policy positions? Newsflash: he's gonna talk trash about everything you do, Senator. Get used to it.

We must now ask ourselves to what extent Hillary's other drug policy positions have been shaped by Rudiphobia. When she raised her hand in opposition to marijuana decrim, was that for real? Was there a little Giuliani in a devil suit whispering in her ear, threatening to tell the swing voters what a hippie she is? Will she backtrack on medical marijuana and needle exchange if Giuliani says he disapproves?

We can spend eternity smashing minority communities with our drug war hammers at the behest of authoritarian demagogues like Rudy Giuliani. And if no one speaks up, that's exactly what will happen. So if Giuliani wants to publicly embrace racist drug war politics, let him.

The antidote to the "soft on drugs" label is to stop looking over your shoulder and start speaking with conviction.

(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.)
Location: 
United States

Death Penalty: More Executions in Iran, More Death Sentences in Vietnam

The use of the death penalty against drug offenders continues at a brisk pace in the Middle East and Southeast Asia. In the past week, Iran executed five more drug offenders, while in Vietnam, prosecutors demanded 11 death sentences for traffickers and the courts upheld one more.

According to the international anti-death penalty group Hands Off Cain, Iranian authorities executed five men November 20 in the eastern city of Birjand for distributing 146 kilos of narcotics. The men were not named. The following day, a man identified only by his first name, Gholam Reza, was hanged in Qom for trafficking in 90 kilos of narcotics.

The same day Iran executed the five men in Birjand, a United Nations General Assembly committee passed a non-binding resolution urging Iran to "abolish, in law and in practice, public executions and other executions carried out in the absence of respect for internationally recognized standards."

Meanwhile, the Vietnamese justice system has been busily calling for and upholding drug trafficking death sentences, too. On November 21, a court in Ho Chi Minh City threw out the appeal of Australian-born Tony Manh, 40, and upheld his death sentence for trafficking two pounds of heroin. He had been arrested at Tan Son Nhat airport after security officers found the heroin hidden on his body as he prepared to board a plane for Sydney.

And Wednesday, prosecutors in Hanoi called for the death penalty to be imposed on 11 people involved in an organization that smuggled 416 kilos of heroin. Death sentences were demanded for ringleader Luong Ngoc Lap and 10 of his lieutenants, while prosecutors demanded life sentences for seven others and 18-to-20 years in prison for three more. The call for the death penalty and other sentences came at the end of a four-day trial in what is northern Vietnam's largest drug case ever.

Canadian Tories' Mandatory Minimum Drug Bill Draws Stiff Opposition, But Can It Be Stopped?

Canada's Conservative federal government last week introduced legislation -- bill C-26 -- that would create mandatory prison sentences for drug trafficking and drug producing offenses, including marijuana cultivation. The move marks a firm embrace of US-style drug war policies by the government of Prime Minister Steven Harper and comes as part of a larger "tough on crime" legislative package. While the measure has strong support among Harper's culturally conservative base and the law enforcement community, it has also excited a firestorm of opposition, and efforts to move it through parliament are sure to result in a battle royal.

But the Harper drug bill will advance -- or not -- within the context of a minority government able to wield the threat of any early call for elections against a Liberal opposition party that doesn't think it is up to the challenge just now. Because Harper's is a minority government, it will need the support of some opposition members to pass, and whether the Liberals will want to make tougher sentences for drug offenders a make or break issue remains to be seen.

While New Democratic Party (NDP) drug policy critic MP Libby Davies (Vancouver East) has already denounced the measure, neither the Liberals nor the Bloc Québecois have issued statements on it. Nor had either party responded to Chronicle requests for comment by press time.

"Drug producers and dealers who threaten the safety of our communities must face tougher penalties," said Minister of Justice Rob Nicholson in a statement announcing the legislation. "This is why our government is moving to impose mandatory jail time for serious drug offenses that involve organized crime, violence or youth."

According to the justice minister, the legislation will amend Canada's drug law, the Controlled Drugs and Substances Act, to include the following mandatory minimum sentences and other enhanced penalties:

  • A one-year mandatory prison sentence will be imposed for dealing drugs such as marijuana when carried out for organized crime purposes, or when a weapon or violence is involved;
  • A two-year mandatory prison sentence will be imposed for dealing drugs such as cocaine, heroin or methamphetamines to youth, or for dealing those drugs near a school or an area normally frequented by youth;
  • A two-year mandatory prison sentence will be imposed for the offense of running a large marijuana grow operation of at least 500 plants;
  • The maximum penalty for cannabis production would increase from 7 to 14 years imprisonment; and
  • Tougher penalties will be introduced for trafficking GHB and flunitrazepam (most commonly known as date-rape drugs).

"Drugs are dangerous and destructive, yet we see Canadian youth being exposed to and taking drugs at such young ages, and grow-ops and drug labs appearing in our residential areas," said Minister Nicholson. "By introducing these changes, our message is clear: if you sell or produce drugs -- you'll pay with jail time."

According to a justice ministry backgrounder on the legislation, marijuana trafficking offenses involving at least three kilograms of weed would be subject to one- or two-year mandatory minimum sentences if "aggravating factors" are present. To earn a one-year mandatory minimum sentence, the offense would have to be "for the benefit of organized crime," involve the use or threat of force or violence, or be committed by someone convicted of a similar offense within the past 10 years. Aggravating factors that can garner a two-year mandatory minimum include trafficking in a prison, in or near a school or "near an area normally frequented by youth," in concert to a youth, or selling to a youth.

The proposed legislation also includes mandatory minimum sentences for any marijuana cultivation offense -- if "the offense is committed for the purpose of trafficking." For up to 200 plants, it's six months mandatory jail time; for 201-500 plants, it's one year in jail; and for more than 500 plants, it's a two-year mandatory minimum. The penalties increase to nine months, 18 months, and 36 months, respectively, if "health and safety factors" are involved. Those factors include using someone else's property to commit the offense, creating a potential health or safety hazard to children, creating a potential public safety hazard in residential areas, or setting traps.

"How fast can we go backwards?" asked attorney and University of Ottawa criminology professor Eugene Oscapella, head of the Canadian Foundation for Drug Policy. "The government is lurching from mistake to mistake on drug policy issues. The Canadian Supreme Court shot down a mandatory minimum seven-year penalty for importing narcotics, and now this government is trying to slip in and establish mandatory minimums that will meet constitutional muster. It is the wrong thing to do in terms of a sensible drug policy," he said.

The legislation could have unintended consequences if it passes, Oscapella said. "By bumping up penalties from seven to 14 years for growing cannabis, it could scare away the "Ma and Pa" operators and leave the field open for organized crime. This bill acts as a broom to sweep out the minor players, and who will fill that gap?"

"This bill will make George W. Bush very happy," said the NDP's Davies. "He will know that at least Stephen Harper is following his lead. The bill has all the dirty hallmarks of the so called 'war on drugs' that has been raging in the United Sates for close to 40 years. As in the US, the rhetoric and spin on this bill plays on fears of drug pushers, especially regarding youth, as the bill promises to get tough on traffickers and dealers, and to protect our children in and around school premises."

Too bad it won't work, said Davies. "The only problem is, as history and reality shows us, this heavy handed reliance on law enforcement is not only a failure; it is a colossal failure, economically, socially, and culturally. Law enforcement regarding drugs typically targets low level dealers and users, and ironically re-enforces the monopoly of organized crime and the drug kingpins, who either escape enforcement or are in the best position to negotiate deals."

The legislation wasn't winning any kudos from Canada's cannabis community, either. "While being portrayed as balanced in government talking points, this legislation is anything but," said Tim Meehan of Patients Against Ignorance and Discrimination on Cannabis, a recently formed medical marijuana advocacy organization based in Ontario. "Unlike the de facto leniency Canadians mostly get before the courts if they have a very small home garden, in this bill there is no personal growing exemption -- even one plant will get you six months, which is effectively nine months unless you are growing in your own house, in a rural area, and are miles from schools or even a park where kids hang out."

"They define organized crime as at least three people operating to the benefit of at least one," pointed out Cannabis Culture magazine publisher Marc Emery, perhaps Canada's best known marijuana advocate. "That means if you grow a plant and give some to me and I sell some to someone else, we're now organized crime. If you're growing a few plants for sale, that's a nine-month mandatory minimum and they take your kids away. They're going to need a new prison in British Columbia every year if this passes."

Emery also predicted other unintended consequences. "The price will go up within a year of passage, and that will cause us to be importing weed from the US for the first time ever," he prophesied.

But, of course, the bill does have its supporters, not only among the Conservative base, but also among powerful law enforcement organizations. "We support the legislation," said Fredericton, New Brunswick Police Chief Barry MacKnight, head of the Canadian Association of Chiefs of Police. "Our overall position is that there must be a balanced approach to the drug problem, and mandatory minimum sentences are just part of that. A very aggressive judicial approach toward drug dealers and manufacturers is consistent with our objectives," he said. "This isn't aimed at that young person smoking a joint behind a building."

While such words may be intended to provide reassurance to the likes of Meehan and Emery, Canada's cannabis nation should not mistake the chief's attitude as one of tolerance. "When it comes to marijuana, our message is clear," said MacKnight. "The jury is in: Marijuana is a harmful drug. Clearly, we are focused on the most harmful drugs, but you can't isolate marijuana from this debate. When it comes to production and trafficking, marijuana is part of the drug subculture."

Ever the guerrilla warrior, Emery is calling for a a nationwide series of demonstrations outside parliament members' offices on December 17. "There are 308 MP offices, and we plan to have at least a dozen people outside each one of them dressed in prison uniforms and holding signs saying 'This is your child with the new Tory drug laws,'" he said. "There won't be any pot-smoking at these events -- this is about politics, not defiance -- and we'll also have people in suits handing out information. The object is to educate the MP and the public. We're telling everyone to tell their MP to stall the bill, or better yet, reverse it -- legalize pot and end prohibition."

While Emery takes the battle to the streets, others will be walking the hallways as they seek to block the bill. The Canadian HIV/AIDS Legal Network has long opposed mandatory minimum sentencing, even publishing a 2006 briefing paper detailing its objections. The group's executive director, Richard Elliott, said Wednesday it would fight the bill in parliament.

"We don't know whether we'll be able to stop it, but we will try to talk to the relevant MPs and we will request to appear before the Standing Committee on Justice, as we did last year," Elliott said. "We'll also make the case as to why this is not a particularly good approach to the relevant ministers, although I doubt they will be open to hearing any criticism."

And so it will come down to the Liberals, the NDP, and the Bloc to stop the bill, and as the largest opposition party, the Liberals are key. With the Conservative threat to call early elections looming in the background, the question is whether the Liberals risk provoking elections over the drug bill. Don't count on it, said Elliott.

"Even if we manage to convince some Liberals this is the wrong approach, I'm not sure they're willing to fall on their swords over this particular issue," he said. "The current political situation is really quite favorable to the governing party because the opposition parties aren't ready to go."

"This is one of those gut-reaction issues," said Oscapella. "When you talk about how we have to tough on drugs, politicians tend to tag along. But it's very important that this bill be blocked; once you have mandatory minimums, they are very difficult to get rid of."

To that end, look for a growing coalition of opponents to emerge and attempt to coordinate. Some portions of the opposition parties will join the fight, as will civil society organizations, and perhaps, given the costs they would have to bear, some provincial governments. But they need to organize quickly; the Conservatives could move fast.

"I suspect this will be one of their top priorities," said Elliott. "They can move this quickly, and I suspect there will be committee hearings early next year, and after that, a vote by the House on a final reading," he predicted.

"This is about creating the perception they are tough on crime," Elliott said. "Unfortunately, we are heading more in your direction with this legislation, and this will only make matters worse."

"These are frightening times," said Oscapella. "We look down and what a colossal failure these policies have been in the US and say, 'Hey, let's do that, too.'"

Sentencing: US Prison Population Could Be Cut in Half With Four Humane Reforms, Including Drug Decriminalization, Report Says

The United States, home of the world's largest prison population, both per capita and in real terms, could save $20 billion a year and cut that population in half by adopting a handful of systemic reforms, including decriminalizing drug possession, said a prestigious group of social scientists in a report released Monday. Noting that the US prison population had grown eightfold since 1970, steadily increasing whether crimes rates were going up or down, the report called US prisons a "self-fueling system."

The report, Unlocking America was released by the JFA Institute, a Washington, DC, research organization that studies issues related to corrections and penal populations. It was authored by eight prominent criminologists and James Austin, president of JFA.

The massive increase in imprisonment in the past four decades has had little impact on crime, but has imposed substantial costs on society -- and on offenders and their families, the report found. "Our contemporary laws and justice system practices exacerbate the crime problem, unnecessarily damage the lives of millions of people (and) waste tens of billions of dollars each year," it said.

Referring to President Bush's pardon of disgraced former White House aide Lewis "Scooter" Libby, the report noted: "President Bush was right. A prison sentence for Lewis "Scooter" Libby was excessive -- so too was the long three year probation term. But while he was at it, President Bush should have commuted the sentences of hundreds of thousands of Americans who each year have also received prison sentences for crimes that pose little if any danger or harm to our society."

Those people are the victims of what the authors described as "three key myths" that drive criminal justice policy: That there are "career criminals" who can be identified and imprisoned to reduce crime, that tougher penalties are needed to protect the public from "dangerous criminals," and that tougher penalties will deter criminals. The authors devote extensive space to debunking those policy-driving misconceptions.

"The system is almost feeding on itself now. It takes years and years and years to get out of this system and we do not see any positive impact on the crime rates," Austin, a coauthor of the report, told a news conference.

A more humane, less expensive, and greatly reduced prison system could be achieved by enacting four fundamental reforms, the report concluded. They are:

  • Reduce time served in prison.
  • Eliminate the use of prison for parole or probation technical violators.
  • Reduce the length of parole and probation supervision periods.
  • Decriminalize "victimless" crimes, particularly those related to drug use and abuse.

Regarding decriminalizing drug offenses, the report noted: "In recent years, behaviors have been criminalized that are not dangerous and pose little if any threat to others. A large group of people are currently serving time for behaviors that have been criminalized to protect people from themselves. Their offenses involved the consent of all immediate parties to the transaction. Common examples in American history have included abortion, gambling, illicit sexual conduct that does not involve coercion (e.g., prostitution and, until recently, homosexual activity), and the sale and possession of recreational drugs. According to the US Department of Justice, approximately 30-40% of all current prison admissions involve crimes that have no direct or obvious victim other than the perpetrator. The drug category constitutes the largest offense category, with 31% of all prison admissions resulting from such crimes."

The drug war is futile and has nasty collateral consequences, the report concluded. "Every time a dealer is taken out of circulation by a prison sentence, a new dealer is drawn in by the lure of large profits. The prosecution and imprisonment of low-level traffickers has increased racial disparities, and is the largest factor contributing to the rapid rise in imprisonment rates for women. Dealers' use of violence to eliminate competition helps to sustain the myth linking drug use to violence. Notwithstanding our extraordinary effort to discourage the use and sale of illegal drugs, they remain widely available and widely used."

Better than a prison-filling policy of prohibition, would be a regulatory approach to drugs, the report said. "Regulatory approaches, such as are now used for drugs that are not illegal should be given serious consideration. The success of recent referenda in several states allowing medical use of marijuana suggests that the public opinion may be changing."

Public opinion would change even faster if more people read this report. It is a scathing indictment of a failed and inhumane set of criminal justice and drug policies. $20 billion a year in savings from adopting the suggested reforms is easily quantifiable; the reduction in human suffering by reducing the prison population in half, while equally significant, is not so easily measured.

Drug War Issues

Criminal JusticeAsset Forfeiture, Collateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Court Rulings, Drug Courts, Due Process, Felony Disenfranchisement, Incarceration, Policing (2011 Drug War Killings, 2012 Drug War Killings, 2013 Drug War Killings, 2014 Drug War Killings, 2015 Drug War Killings, Arrests, Eradication, Informants, Interdiction, Lowest Priority Policies, Police Corruption, Police Raids, Profiling, Search and Seizure, SWAT/Paramilitarization, Task Forces, Undercover Work), Probation or Parole, Prosecution, Reentry/Rehabilitation, Sentencing (Alternatives to Incarceration, Clemency and Pardon, Crack/Powder Cocaine Disparity, Death Penalty, Decriminalization, Defelonization, Drug Free Zones, Mandatory Minimums, Rockefeller Drug Laws, Sentencing Guidelines)CultureArt, Celebrities, Counter-Culture, Music, Poetry/Literature, Television, TheaterDrug UseParaphernalia, ViolenceIntersecting IssuesCollateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Violence, Border, Budgets/Taxes/Economics, Business, Civil Rights, Driving, Economics, Education (College Aid), Employment, Environment, Families, Free Speech, Gun Policy, Human Rights, Immigration, Militarization, Money Laundering, Pregnancy, Privacy (Search and Seizure, Drug Testing), Race, Religion, Science, Sports, Women's IssuesMarijuana PolicyGateway Theory, Hemp, Marijuana -- Personal Use, Marijuana Industry, Medical MarijuanaMedicineMedical Marijuana, Science of Drugs, Under-treatment of PainPublic HealthAddiction, Addiction Treatment (Science of Drugs), Drug Education, Drug Prevention, Drug-Related AIDS/HIV or Hepatitis C, Harm Reduction (Methadone & Other Opiate Maintenance, Needle Exchange, Overdose Prevention, Safe Injection Sites)Source and Transit CountriesAndean Drug War, Coca, Hashish, Mexican Drug War, Opium ProductionSpecific DrugsAlcohol, Ayahuasca, Cocaine (Crack Cocaine), Ecstasy, Heroin, Ibogaine, ketamine, Khat, Marijuana (Gateway Theory, Marijuana -- Personal Use, Medical Marijuana, Hashish), Methamphetamine, New Synthetic Drugs (Synthetic Cannabinoids, Synthetic Stimulants), Nicotine, Prescription Opiates (Fentanyl, Oxycontin), Psychedelics (LSD, Mescaline, Peyote, Salvia Divinorum)YouthGrade School, Post-Secondary School, Raves, Secondary School