Mandatory Minimums

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Feature: Senate Judiciary Committee Unanimously Passes Bill to Reduce Crack/Powder Cocaine Sentencing Disparity

The US Senate Judiciary Committee Thursday unanimously approved a bill that would reduce -- but not eliminate -- the disparity in sentencing for federal crack and powder cocaine offenses. Under the bill introduced by Sen. Richard Durbin (D-IL), SB 1789, the disparity would have been completely eliminated, but the committee instead approved an amended version that reduces the ratio between crack and powder cocaine quantities from 100:1 to 20:1.

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US Capitol, Senate side
Under current federal law, it takes only five grams of crack to garner a mandatory minimum five-year prison sentence, while it takes 500 grams of powder cocaine to earn the same prison time. Under the Senate bill, an ounce of crack will get you a five-year prison sentence while it would take more than a pound of powder cocaine to garner the same sentence. But even retaining the 20:1 disparity, advocates estimate that some 3,100 cases would be affected each year, with sentences reduced by an average of 30 months.

The amended bill also eliminates the mandatory minimum sentence for crack cocaine possession. But it also directs the US Sentencing Commission to increase sentences for aggravating factors such as violence or bribery of a police officer.

"This is an exciting vote, but also disappointing," said Julie Stewart, head of Families Against Mandatory Minimums (FAMM). "We hoped the committee would go further in making crack penalties the same as powder. There was no scientific basis for the 100:1 disparity between crack and powder cocaine created 24 years ago, and there is no scientific basis for today’s vote of 20:1. However, if this imperfect bill becomes law, it will provide some long-overdue relief to thousands of defendants sentenced each year."

Stewart also noted with approval the elimination of the mandatory minimum sentence for simple crack possession. "If enacted, this legislation would repeal a mandatory minimum law for the first time since the Nixon administration," she said.

Stewart's sentiments were echoed by spokespersons for the Drug Policy Alliance (DPA), which, like FAMM, has been lobbying on the Hill for years to undo the draconian and racially disparate impact of the federal crack laws. Although African-Americans make up only 30% of crack consumers, they account for 82% of all federal crack prosecution. Nearly two-thirds of all those convicted under the crack laws were low-level dealers or other minimally involved players.

"Today is a bittersweet day," said DPA's Jasmine Tyler. "On one hand, we've moved the issue of disparate sentencing for two forms of the same drug forward, restoring some integrity to our criminal justice system. But, on the other hand, the Senate Judiciary Committee, by reducing the 100:1 disparity to 20:1, instead of eliminating it, has proven how difficult it is to ensure racial justice, even in 2010."

"It's pretty amazing when you think about everything the Republicans and Democrats are fighting over -- health care, budgets, all that -- this is the one thing they can all come together on," said DPA national affairs director Bill Piper, noting the unanimous committee vote.

A similar bill passed the House Judiciary Committee during this same session of Congress last July. Introduced by Rep. Bobby Scott (D-VA), HR 3245 completely eliminates the sentencing disparity for crack and powder cocaine offenses by simply removing all references to crack cocaine from the federal statute.

Now it is up to Senate Majority Leader Harry Reid (D-NV) and House Speaker Nancy Pelosi (D-CA) to get the respective measures to a floor vote. Advocates are urging the White House to support the House bill.

"We're urging people to be very clear to the House, the Senate, and the president that the disparity should be completely eliminated and not just reduced," said DPA's Piper. "The House bill is the one that should ultimately be voted out of Congress. Our challenge is to get the full 1:1 bill approved, not the 20:1. That said, even 20:1 is a step in the right direction," he added, noting the glacial, multi-stage pace of Rockefeller drug law reform in New York state.

"While Democrats and Republicans bicker over healthcare, unemployment, education and other issues, it’s good to see that they unanimously agree that US drug laws are too harsh and need to be reformed," said DPA's Tyler. "While many will benefit from this change, more needs to be done. The disparity must be completely eliminated, and President Obama and Speaker Pelosi will have to stand up firmly on the issue to make that a reality."

Now it is a matter of political will in the White House and among the Democratic leadership of the House and Senate, said Piper. "It is totally up to the House and Senate leadership to decide when and what they will take to the floor, but we have to do it this year, or everything dies, and we have to start over again next year."

The first significant rollback of a federal drug sentencing law in decades is drawing tantalizingly near after almost a quarter-century of hysteria-driven federal crack laws. Will the congressional Democrats have the gumption to push either the House bill or the Senate bill to a floor vote? Stay tuned.

Medical Marijuana: Bryan Epis Returned to Federal Prison, Must Serve Out 10-Year Sentence for Growing Pot for the Sick

Bryan Epis, the first California medical marijuana provider to be prosecuted and convicted for growing marijuana for patients, was sent back to federal prison Monday by a federal judge in Sacramento. Epis had served two years of his sentence before he was released in 2004 by an order of the 9th US Circuit Court of Appeals.

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Bryan Epis
The now more than 12-year-old case began in 1997, when Epis was arrested for growing at least 100 marijuana plants in the basement of his Chico home. During his trial, Epis testified that he was growing for himself and four other medical marijuana patients, with any excess marijuana going to a medical cannabis buyers' club.

But based on business plans Epis had sketched out to expand on his garden and prosecutors' allegations he was only in it for the money, a jury in Sacramento found him guilty in July 2002 of growing more than 100 plants and conspiracy to grow more than 1,000 plants. He received a 10-year mandatory minimum sentence, in part because his house was within 1,000 feet of a local high school.

Epis served two years in federal prison before winning a ruling from the 9th Circuit that he should be freed pending the resolution of the landmark Raich v. Gonzalez case. Unfortunately for Epis, the US Supreme Court ruled in that case that federal drug laws trump state medical marijuana laws.

Epis was resentenced to 10 years in 2007, but had been free on $500,000 bail pending appeal. But the 9th Circuit decided against him in August, the US Supreme Court declined to review that ruling, and the end came Monday.

Federal prosecutor Samuel Wong, who has been Epis' bête noir since the beginning of the case, didn't let up Monday. He continued to insist that the case had nothing to do with medical marijuana. "As the court knows, this is not a medical marijuana case. That term doesn't ever apply to cases of this scope," Wong charged. "Mr. Bryan Epis grew and distributed large amounts of marijuana even before the law changed in California," he added, although Epis was never charged with that.

Attorney John Balazs, who represented Epis, asked that he be given a surrender date so that he could explore other means of overturning the conviction and sentence. But US District Court Judge Frank Damrell was having none of it. "It's over, Mr. Epis."

Epis was then taken to a holding cell as his girlfriend and daughter wept. If nothing happens to change things, he won't be free again until around 2017.

Last year, the US Justice Department made it department policy not to persecute medical marijuana providers in compliance with state law. But it has yet to stop the prosecutions of medical marijuana providers arrested before then or move to provide relief for those imprisoned after being convicted under Clinton and Bush-era policies.

Congress: Bill to Do Top-to-Bottom Review of Criminal Justice System, Drug War Passes Senate Judiciary Committee

The Senate Judiciary Committee Thursday approved Sen. Jim Webb's (D-VA) National Criminal Justice Commission Act of 2009 on a unanimous voice vote Thursday. The bill would create a commission to conduct a top-to-bottom evaluation of the country's criminal justice system and offer recommendations for reform at every level.

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Jim Webb at 2007 incarceration hearing (photo from sentencingproject.org)
Webb has been a harsh critic of national drug policies, and has led at least two hearings on the costs associated with current policies. The bill could create an opportunity to shine a harsh light on the negative consequences of the current policies.

An amendment offered by Sen. Arlen Specter (D-PA) and accepted by the committee stripped out the original bill's lengthy list of negative drug policy "findings" and replaced them with blander language, but left the bill's purpose intact.

Passage out of committee was applauded by sentencing reform advocates. "Families Against Mandatory Minimums (FAMM) commends the Senate Judiciary Committee for recognizing that the American criminal justice system needs an overhaul," said Jennifer Seltzer Stitt, FAMM federal legislative affairs director. "Any comprehensive reform of our criminal justice system must include eliminating mandatory minimum laws. One-size-fits-all mandatory drug sentencing laws enacted in the 1980s are responsible for filling prisons with low-level, nonviolent drug offenders, wasting millions in taxpayer dollars, and destroying public trust in the criminal justice system. The National Criminal Justice Commission can help right these wrongs by recommending mandatory sentencing reform."

The bill's prospects are uncertain. It faces a crowded calendar in the Senate and has made little progress in the House.

Canada: Mandatory Minimum Bill for Marijuana Growing Dies Sudden Death When Prime Minister Shuts Down Parliament

In a political maneuver designed to shield his embattled Conservative government from criticism during the upcoming Winter Olympics in Vancouver, Canadian Prime Minister Steven Harper on December 30th "prorogued," or shut down, Parliament until a new session begins in March. The move kills all pending legislation, including a Tory "tough on crime" bill, C-15, that included mandatory minimum nine-month prison sentences for growing as much as a single marijuana plant.

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Proroguing parliament is not a routine move, but this is the second time Harper has done it in a year. Last December, he did it to head off a looming vote of no-confidence, with a coalition of New Democrats, Liberals, and Bloc Quebecois looking to replace his Conservative government. Now, he says he is doing it to introduce a new budget, but the maneuver also kills all parliamentary committees, including one looking into allegations Canadian soldiers in Afghanistan turned detainees over to Afghan authorities who abused them. That inquiry has raised embarrassing questions about Canada's policies in Afghanistan.

To the relief of drug reform advocates and Canada's cannabis culture, the move kills a bill that was very harsh and very near to passage. Under the provisions of C-15 as passed by the House, people growing between one and 200 marijuana plants faced a minimum of six months if the "offense is committed for the purpose of trafficking." That would rise to nine months if it were a rental property, if children were endangered, or if the grow presented a public safety threat, i.e. was stealing electricity.

The bill mandated a one-year minimum for between 201 and 500 plants or for producing hashish and two years for more than 500 plants. It also had one-year minimums for importing or exporting marijuana and for trafficking more than three kilograms if it was for the benefit of "organized crime," there was threat or use of violence or weapons, or if the offender had a serious previous drug offense. The trafficking minimum jumped to two years if it occurred in a prison, if the trafficking was to a minor, or if it was "in or near a school, in or near an area normally frequented by youth or in the presence of youth."

The bill had been amended earlier this month by the Senate Constitutional Affairs and Legal Committee to remove the mandatory minimum provisions for under 201 plants, but only if the grows were not in residential areas and owned by the grower. That meant anyone growing in a residential neighborhood or in a rental property still faced a nine-month minimum, limiting relief to rural home-owners.

The bill awaited only a final vote in the Senate. Now, Harper has sacrificed it on the altar of his political calculations. But like a vampire, C-15 is likely to rise from the grave. It has been a central plank in Harper's appeals to his law-and-order constituencies, and his government is almost certain to reintroduce it when the new session begins in March, or after he calls snap elections, which the Conservatives seem well-positioned to win as their main rivals, the Liberals, flounder.

Don't put away those wooden stakes just yet.

Sentencing: New Jersey Legislature Rolls Back Mandatory Minimums, Governor Will Sign Bill Into Law

With a 46-30 vote Thursday, the New Jersey Assembly gave final approval to a bill that will end mandatory minimum sentences for some "drug free zone" drug offenses. The bill passed the Senate in December. Outgoing Gov. Jon Corzine (D) has said he will sign the bill into law. When that happens, New Jersey will become the first state to roll back a mandatory minimum school zone law.

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misleading concept
Under a sentencing law in place since 1987, drug offenses that occurred within 1,000 feet of a school incurred mandatory minimum sentences of one to three years. Critics had argued for years that the law had a disproportionate impact on minority inner city residents and that it unnecessarily filled the state's prisons with low-level drug offenders who could be better served by drug treatment. The state spent $331 million last year to imprison drug offenders.

The bill just passed, A2762, would allow judges the discretion to impose a lesser sentence or probation, depending on whether school was in session, how close to a school it was, and whether children were present. Mandatory minimums would stay in effect if the offense took place on school grounds or involved violence or a gun.

According to the state Department of Corrections, 69% of drug offenders doing time are doing mandatory minimums. This bill will allow those doing mandatory minimums for school zone offenses to appeal those sentences.

"The mandatory minimum sentencing the zones require has effectively created two different sentences for the same crime, depending on where an individual lives," said Assembly Majority Leader Bonnie Watson Coleman (D-Mercer), one of the bill's cosponsors. "This is geographic discrimination at its most basic."

"This is a progressive solution to a complex problem," said Assemblyman Gordon Johnson (D-Bergen), another cosponsor.

The legislature's action won praise from sentencing and drug policy reform groups that were part of a broad coalition to pass the bill. "Families Against Mandatory Minimums (FAMM) commends the legislative leaders who fought for smart on crime sentencing policies in New Jersey. State lawmakers are increasingly disenchanted with ineffective and costly mandatory minimum sentences for nonviolent, drug-related offenses and are turning to policies that allow the courts to individualize punishments based on the facts of each case. This move signals a better course for New Jersey, and fairer sentences for low-level, nonviolent drug offenders," said Deborah Fleischaker, FAMM's director of state legislative affairs.

Roseanne Scotti, director of the Drug Policy Alliance New Jersey office, said the vote signals a new willingness on the part of elected officials at both the state and national level to reform failed sentencing and drug policies.

"At one time, these types of mandatory minimum laws were considered untouchable," said Scotti. "But there is a growing public backlash against these failed policies and a growing willingness on the part of elected officials to address the mistakes of the past."

Canada: Mandatory Minimum Bill for Pot Growing Dies Sudden Death When Prime Minister Shuts Down Parliament

In a political maneuver designed to shield his embattled Conservative government from criticism during the upcoming Winter Olympics in Vancouver, Canadian Prime Minister Stephen Harper Wednesday "prorogued," or shut down, parliament until a new session begins in March. The move kills all pending legislation, including a Tory "tough on crime" bill, C-15, that included mandatory minimum nine-month prison sentences for growing as much as a single marijuana plant. Prorouging parliament is not a routine move, but this is the second time Harper has done it in a year. Last December, he did it to head off a looming vote of no-confidence, with a coalition of New Democrats, Liberals, and Bloc Quebecois looking to replace his Conservative government. Now, he says he is doing it to introduce a new budget, but the maneuver also kills all parliamentary committees, including one looking into allegations Canadian soldiers in Afghanistan turned detainees over to Afghan authorities who abused them. That inquiry has raised embarrassing questions about Canada's policies in Afghanistan. To the relief of drug reform advocates and Canada's cannabis culture, the move kills a bill that was very harsh and very near to passage. Under the provisions of C-15 as passed by the House, people growing between one and 200 marijuana plants faced a minimum of six months if the "offense is committed for the purpose of trafficking." That would rise to nine months if it were a rental property, if children were endangered, or if the grow presented a public safety threat, i.e. was stealing electricity. The bill mandated a one-year minimum for between 201 and 500 plants or for producing hashish and two years for more than 500 plants. It also had one-year minimums for importing or exporting marijuana and for trafficking more than three kilograms if it was for the benefit of "organized crime," there was threat or use of violence or weapons, or if the offender had a serious previous drug offense. The trafficking minimum jumped to two years if it occurred in a prison, if the trafficking was to a minor, or if it was "in or near a school, in or near an area normally frequented by youth or in the presence of youth." The bill had been amended earlier this month by the Senate Constitutional Affairs and Legal Committee to remove the mandatory minimum provisions for under 201 plants, but only if the grows were not in residential areas and owned by the grower. That meant anyone growing in a residential neighborhood or in a rental property still faced a nine-month minimum, limiting relief to rural home-owners. The bill awaited only a final vote in the Senate. Now, Harper has sacrificed it on the altar of his political calculations. But like a vampire, C-15 is likely to rise from the grave. It has been a central plank in Harper's appeals to his law-and-order constituencies, and his government is almost certain to reintroduce it when the new session begins in March, or after he calls snap elections, which the Conservatives seem well-positioned to win as their main rivals, the Liberals, flounder. Don't put away those wooden stakes just yet.
Location: 
Ottawa, ON
Canada

The Year on Drugs 2009: The Top Ten US Domestic Drug Policy Stories

As 2009 prepares to become history, we look back at the past year's domestic drug policy developments. With the arrival of a highly popular (at least at first) new president, Barack Obama, and Democratic Party control of the levers of power in Congress, the drug reform gridlock that characterized the Bush years is giving way to real change in Washington, albeit not nearly quickly enough. A number of this year's Top 10 domestic drug stories have to do with the new atmospherics in Washington, where they have led, and where they might lead.

But not all of them. Drug reform isn't made just in Washington. Under our federal system, the 50 states and the District of Columbia have at least some ability to set their own courses on drug policy reforms. In some areas, actions in the state legislatures have reflected trends -- for better or worse -- broad enough to earn Top 10 status.

And Washington and the various statehouses notwithstanding, movement on drug reform is not limited to the political class. Legions of activists now in at least their second decade of serious reform work, a mass media that seems to have awakened from its dogmatic slumber about marijuana, a crumbling economy, and a bloody drug war within earshot of the southwestern border have all impacted the national conversation about drug reform and are all pushing politicians from city councilmen to state legislators to US senators to rethink drug prohibition.

For drug reformers, these are interesting times, indeed. Herewith, the Top 10 domestic drug policy stories of 2009:

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marijuana plants (photo from US Fish and Wildlife Service via Wikimedia)
Marijuana Goes Mainstream

Wow. This year has seen the US enter the beginnings of a sea change on policies and attitudes toward the recreational use of marijuana. The first hint that something had changed was the Michael Phelps bong photo non-scandal. When the multiple Olympic gold medal winner got outed for partying like a college student, only one corporate sponsor, fuddy-duddy Kellogg, dumped him, and was hit by a consumer boycott -- and arguably by falling stock prices -- in return. Otherwise, except for a deranged local sheriff who tried fruitlessly to concoct a criminal case against somebody -- anybody! -- over the bong photo, America's collective response basically amounted to "So what?"

Post-Phelps it was as if the flood gates had opened. Where once Drug War Chronicle and a handful of other publications pretty much had the field to ourselves, early this year, the mass media began paying attention. Countless commentaries, editorials and op-eds have graced the pages of newspaper and those short-attention-span segments on the cable news networks, an increasing number of them calling for legalization. The conversation about freeing the weed has gone mainstream.

The sea change is also reflected in poll numbers that, for the first time, this year showed national majorities in favor of legalization. In February, a Zogby poll showed 44% support nationwide -- and 58% in California. By late spring, the figures were generally creeping ever higher. An April Rasmussen poll had support for "taxation and regulation" at 41%, while an ABC News/Washington Post poll found 46% supported "legalizing the possession of small amounts of marijuana for personal use." Also in April, for the first time, a national poll showed majority support for legalization when Zogby showed 52% saying marijuana should be "legal, taxed, and regulated." In July, a CBS News poll had support for legalization at 41%.

In October, a Gallup poll had support for legalization at 44%, the highest ever in a Gallup survey. And a few weeks ago an Angus-Reid poll reported 53% nationwide supported legalization. Legalizing pot may not have clear majority support just yet, but it is on the cusp.

Marijuana law reform was also a topic at statehouses around the country this year, although successes were few and far between. At least six states saw decriminalization bills, but only one passed -- in Maine, which had already decriminalized possession of up to 1.25 ounces. This year's legislation doubled that amount. And then there were legalization bills. Two were introduced in the 2009 session, in California and Massachusetts, and two more have been pre-filed for next year, in New Hampshire and Washington. Both the California and Massachusetts bills got hearings this year, and the California bill is set for another hearing and a first committee vote in the Assembly in two weeks. In Rhode Island, meanwhile, the legislature voted this year to create a commission to study marijuana law reform; it will report at the end of January.

And then, finally, there is the excitement and discussion being generated by at least three separate marijuana legalization initiative campaigns underway in California. Oaksterdam medical marijuana entrepreneur Richard Lee's Tax Cannabis 2010 initiative has already announced it has sufficient signatures to make the ballot. Time will tell if the others make it, but at this point it is almost certain that voters in California will have a chance to say "legalize it" in November.

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medical marijuana dispensary, Ventura Blvd., LA (courtesy wikimedia.org)
Medical Marijuana: The Feds Butt Out and the Floodgates Begin to Swing Open

During his election campaign, President Obama promised to quit siccing the DEA on medical marijuana patients and providers. In February, new Attorney General Eric Holder announced there would be no more federal raids if providers were in compliance with state law, and pretty much held to that promise since then. In October, the Justice Department made it official policy when it issued a policy memo reiterating the administration's stance.

The new "hands off" policy from Washington has not been universally adhered to, nor has it addressed the issue of people currently serving sentences or facing prosecution under Bush administration anti-medical marijuana initiatives, but it has removed a huge looming threat to growers and dispensary operators and it has disarmed a favored (if intensely hypocritical) argument of medical marijuana foes that such laws should not be passed out of fear of what the feds would do.

Meanwhile, California rolls right along as medical marijuana's Wild West. Like countless other localities in the Golden State, the city of Los Angeles is grappling with what to do with its nearly one thousand dispensaries. The issue is being fought city by city and county by county, in the state courts and in the federal courts. And while the politicians argue, dispensary operators are creating political facts on the ground as their tax revenues go into hungry state and local coffers.

This year also marked the emergence of a medical marijuana industry infrastructure -- growers, grow shops, dispensaries, educational facilities, pot docs -- beyond California's borders, most notably in Colorado, where the dispensary scene exploded in the wake of the removal of the federal threat, and in Michigan, where last year's passage of a medical marijuana law has seen the creation of the Midwest's first medical marijuana industry.

While medical marijuana is legal in 13 states (and now, the District of Columbia), it remains difficult to win victories in state legislatures. There were medical marijuana bills in at least 18 states, but only two -- Minnesota and New Hampshire -- were approved by legislatures, and they were vetoed by prohibitionist governors. Bills are, however, still alive in six states -- Delaware, Illinois, New Jersey, New York, Pennsylvania, and Wisconsin -- with New Jersey and Wisconsin apparently best positioned to become the next medical marijuana state. In Rhode Island, which already approved a medical marijuana law in 2007, the legislature this year amended it to include a dispensary system.

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salvia leaves (photo courtesy Erowid.org)
The Reflexive Prohibitionist Impulse Remains Alive -- Just Ask Sally D

Despite evident progress on some drug reform fronts, a substantial number of Americans continue to hold to prohibitionist values, including a number of state legislators. The legislative response to the popularity of the fast-acting, short-lived hallucinogen salvia divinorum is the best indicator of that.

The DEA has been reviewing salvia for five years, and has yet to determine that it needs to become a controlled substance, but that hasn't stopped some legislators from trying to ban it. Appalled by YouTube videos that show young people getting very high, legislators in 13 states have banned or limited sales of the herb.

This year, four more states joined the list. The good news is that legislators in seven other states where salvia ban bills were introduced had better things to do with their time than worry about passing them.

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drug testing lab
"We Must Drug Test Welfare and Unemployment Recipients!"

In another indication that the drug warrior impulse is still alive and well -- as are its class war elements -- legislators in various states this year continued to introduce bills that would mandate suspicionless drug testing of people seeking unemployment, public assistance, or other public benefits. Never mind that Michigan, the only state to pass such a law, saw its efforts thrown out as an unconstitutional search by a federal appeals court several years back.

Such efforts exposed not only public resentment of benefits recipients, but also a certain level of ignorance about the way our society works. A common refrain from supporters was along the lines of "I have to get drug tested for my job, so why shouldn't they have to get drug tested?" Such questioners fail to understand that our system protects us from our government, but not from private employers.

But if welfare drug testing excited some popular support, it also excited opposition, not only on constitutional grounds, but on grounds of cost and elemental fairness. In the four states where drug testing bills were introduced -- Kansas, Louisiana, Missouri and West Virginia -- none of them went anywhere. But even in an era when drug reform is in the air, such bills are a clear sign that there will be many rear-guard battles to fight.

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unjust, but also unaffordable
Rockefeller Drug Law and Other State Sentencing Reforms

Reeling under the impact of economic downtowns and budget crises, more and more states this year took a second look at drug-related sentencing policies. Most notable of the reforms enacted at the state level this year were reforms in New York's draconian Rockefeller drug laws, which went into effect in October. Under this newest round of Rockefeller drug law reforms, some 1,500 low-level drug offenders will be able to seek sentence reductions, while judges gain some sentencing power from prosecutors, and treatment resources are being beefed up. But still, more than 12,000 will remain in Empire State prisons on Rockefeller drug charges.

New York wasn't the only state to enact sentencing reforms this year. This month, New Jersey legislators passed a bill giving judges the discretion to waive mandatory minimum sentences for some drug offenses. Last month, Rhode Island mandatory minimum reforms went into effect. Earlier this year, Louisiana finally acted to redress the cruel plight of the "heroin lifers," people who had been sentenced to life without parole for heroin possession under an old state law. A new state law cut heroin sentences, but did not address the lifers. As a result, some lifers remained in prison with no hope of parole while more recent heroin offenders came, did their time, and went. Now, under this year's law, the lifers are eligible for parole.

Sentencing reforms are also in the works in a number of other states, from Alabama to California and from Colorado to Michigan. In some cases, reform legislation is in progress; in others, legislators are waiting for commissions to report their findings. In nearly every case, it is bottom-line budget concerns rather than bleeding heart compassion for the incarcerated that is driving the reforms.

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PolitickerMD cartoon about the Berwyn Heights raid
Swatting SWAT

It was only one bill in one state, and all it required was reporting by SWAT teams of their activities, but the Maryland SWAT bill passed this year marked the first time a state legislature has moved to rein in aggressive paramilitary-style policing. More precisely, the bill requires all law enforcement agencies that operate SWAT teams to submit monthly reports on their activities, including when and where they are used, and whether the operations result in arrests, seizures or injuries.

In took an ugly incident involving the mayor of a Washington, DC, suburb to make it happen. Marijuana traffickers sent a load of pot to the mayor's address to avoid having police show up on their doorstep in the event something went wrong, but something did go wrong, and police tracked the package. When the mayor innocently carried the package inside on returning home, the SWAT team swooped, manhandling the mayor and his mother-in-law and killing the family's pet dogs. The cops were unapologetic, the mayor was apoplectic, and now Maryland has a SWAT law. A new bill just filed in Maryland would take it further, requiring police to secure a judge's warrant before deploying a SWAT team.

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shrine to San Malverde, Mexico's ''narco-saint,'' Culiacan, Sinaloa
America Finally Notices the Drug War Across the River

While Congress and the Bush administration got serious about Mexico's bloody drug wars in 2008, passing a three-year, $1.4 billion anti-drug aid package for Mexico and Central America, it was not until this year that the prohibition-related violence in Mexico really made the radar north of the border.

It only took about 11,000 deaths (now up to over 16,000) among Mexican drug traffickers, police, soldiers, and innocent bystanders to get the US to pay attention to the havoc being wreaked on the other side of the Rio Grande. But by the spring, Washington was paying attention, and for the first time, one could hear mea culpas coming from the American side. Mexico's drug violence is driven by demand in the US, Secretary of State Hillary Clinton admitted and Homeland Security Secretary Janet Napolitano echoed.

But just because Washington admitted some fault didn't mean it was prepared to try anything different. And while the Mexican drug wars brought talk of legalization -- especially of marijuana -- what they brought in terms of policy was the Southwest Border Counternarcotics Strategy, which is basically mo' better drug war.

Mexico's drug wars show no signs of abating, and the pace of killing has accelerated each year since President Felipe Calderon sent in the army three years ago this month. The success -- or failure -- of his drug war policies may determine Calderon's political future, but it has for the first time concentrated the minds of US policymakers on the consequences of prohibition south of the border.

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syringes -- better at the exchange than on the street
Congress Ends Ban on Needle Exchange Funding, Butts Out of DC Affairs

After a decade-long struggle, the ban on federal funding for needle exchange programs ended this month with President Obama's signature on an omnibus appropriations bill that included ending the federal ban, as well as a similar ban that applied to the District of Columbia. The bill also removed a ban on the District implementing a medical marijuana law passed by voters in 1998.

Removing the funding ban has been a major goal of harm reduction and public health coalitions, but they had gotten nowhere in the Republican-controlled Congresses of the past decade. What a difference a change of parties makes.

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Jim Webb at 2007 incarceration hearing (photo from sentencingproject.org)
Questioning the Drug War: Two Congressional Bills

The US Congress has been a solid redoubt of prohibitionist sentiment for decades, but this year saw the beginning of cracks in the wall. Two legislators, Rep. Elliot Engel (D-NY) and Sen. Jim Webb (D-VA) introduced and have had hearings on bills that could potentially challenge drug war orthodoxy.

Engel's bill, the Western Hemisphere Drug Policy Commission Act, which has already passed the House, would set up a commission to examine US eradication, interdiction, and other policies in the Western Hemisphere. While Engel is no anti-prohibitionist, any honest commission assessing US drug policy in the Americas is likely to come up with findings that subvert drug war orthodoxy.

Meanwhile, Sen. Webb's National Criminal Justice Commission Act of 2009 comes at the issue from a much more critical perspective. It calls for a top-to-bottom review of a broad range of criminal justice issues, ranging from sentencing to drug laws to gangs and beyond, with an emphasis and costs and efficacy. Webb's bill remains in the Senate Judiciary Committee, but has 35 cosponsors. Webb has already held hearings on the costs of mass incarceration and the economic costs of drug policy, and even more than Engel's bill, the Webb bill has the potential to get at the roots of our flawed national drug policy.

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Sen. Durbin at May hearing on crack sentencing
The Crack/Powder Cocaine Sentencing Disparity

The 100:1 disparity in the quantities of crack needed to earn a mandatory minimum federal prison sentence versus the quantities of powder cocaine needed to earn the same sentence has been egregiously racist in its application, with roughly 90% of all federal crack offenders being non-white, and pressure has been mounting for years to undo it. It hasn't happened yet, but 2009 finally saw some serious progress on the issue.

The move to reform the sentencing disparity got a boost in June, when Attorney General Holder said it had to go. The next month, a House Judiciary Committee subcommittee passed the Fairness in Cocaine Sentencing Act of 2009. The bill is now before the House Judiciary and Energy and Commerce Committees.

On the Senate side, Sen. Dick Durbin (D-IL) introduced a companion bill in October, the Fairness in Sentencing Act. It hasn't moved yet, but thanks to a decade-long effort by a broad range of advocates, all the pieces are now in place for something to happen in this Congress. By the time we get around to the Top 10 of 2010, the end of the crack/powder cocaine sentencing disparity better be one of the big stories.

Sentencing: Era of Mandatory Minimums for Drugs Comes to an End in Rhode Island

As of last week, Rhode Island sentencing reforms that eliminate mandatory minimums for drug offenses have taken effect. The sentencing reforms were embodied in H 5007 and its companion bill, S 039, which were passed by the General Assembly on October 29 and went into effect two weeks later without the signature of Gov. Donald Carcieri.

The new law strikes previous language mandating 10-year mandatory minimums for possession, manufacture or sale of between an ounce and a kilogram of heroin or cocaine, between one and five kilos of marijuana, and between 100 and 1,000 tablets of LSD. It also strikes 20-year mandatory minimums for quantities greater than those just listed.

It's not like it'll be a drug dealers' holiday, though. While it eliminates the old law's mandatory minimums, it keeps its maximums of up to 50 years in the first instance and up to life in prison in the second. And while it also eliminates minimum fines of $10,000 and $25,000, it raises maximum fines to $500,000 and $1 million.

Still, legislators and reform advocates were enjoying a hard-fought and long-sought victory. "I am thrilled that our hard work has finally paid off," said Rep. Joseph Almeida, sponsor of the House bill. "These sentences were enacted in a different era, at a time when policymakers around the nation believed that long sentences would act as a deterrent against drug use and drug dealing. Twenty years down the road we have seen that these policies are a failure. They have devastated our communities and driven up the prison population, costing tax-payers millions of dollars."

"It's a shame it took a disastrous economy and horrific state budget deficits for the evidence to finally sink in, but politicians at last are realizing that we as a society can no longer afford to pay for our prejudices," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "It's nice to see elected officials providing real leadership in rolling back the excesses of 1980s drug war hysteria."

For Rhode Island nonprofit Direct Action for Rights and Equality (DARE), victory was sweet, but there are more battles to be fought. "We have always looked at this legislation as a starting point," said DARE's Executive Director Fred Ordonez. "Our hope is that this will help spark a trend among Rhode Island decision-makers to shift away from a tough-on-crime approach and towards a smart-on-crime approach."

Reform proponents led by DARE grafted together an impressive coalition of state and national organizations, including the Rhode Island ACLU, the Rhode Island Public Defender's Office, the Rhode Island Family Life Center, RICARES, the Drug and Alcohol Treatment Association of Rhode Island, the Roger Williams Law School, the Drug Policy Alliance, and Families Against Mandatory Minimums (FAMM).

Press Release: NJ Senate Comm. to Vote on Reforming Mandatory Minimum Drug Laws

FOR IMMEDIATE RELEASE: November 18, 2009 CONTACT: Tony Newman at 646-335-5384 or Roseanne Scotti at 609-610-8243 NJ Senate Judiciary Committee to Vote Monday on Groundbreaking Sentencing Bill that Would Give Judges the Discretion to Waive Mandatory Minimum Sentences for Some Nonviolent Drug Offenses Advocates Commend Legislation as Common-Sense and Reasonable Reform that Would Increase Fair and Effective Sentencing and Save Taxpayer Money On Monday, November 23, the Senate Judiciary Committee will consider Senate Bill 1866, which would give judges the discretion to waive mandatory minimum sentences for some nonviolent drug offenses. The Assembly passed the companion legislation, A2762, last year and Gov. Jon Corzine has said he will sign the bill when it gets to his desk. This critically important legislation would be a groundbreaking first step in reforming New Jersey’s draconian sentencing laws for nonviolent drug offenses. Roseanne Scotti, director of Drug Policy Alliance New Jersey, applauded the committee’s willingness to consider the bill and urged passage. “Twenty years ago, New Jersey began implementing harsh mandatory minimum sentences for nonviolent drug offenses. These laws have been a spectacular failure. They have done nothing to decrease drug activity and have filled New Jersey’s prisons with nonviolent drug offenders at great cost to New Jersey taxpayers,” said Scotti. It costs New Jersey taxpayers more than $46,000 a year to incarcerate an individual and New Jersey spends about $331 million a year just to incarcerate nonviolent drug offenders. Allowing judges some discretion would guarantee that justice is done and that taxpayer dollars are not wasted. At a time when New Jersey is facing serious budget deficits and cutting spending on education, health and other critical programs, advocates say New Jersey needs to take a hard look at policies that have mandated the warehousing of large numbers of nonviolent drug offenders at enormous cost to taxpayers. S1866/A2762 is supported by a broad coalition of organizations including Volunteers of American Delaware Valley, Corporation for Supportive Housing, New Jersey Association on Correction, New Jersey Institute for Social Justice, Coalition of Community Corrections Providers of New Jersey, Women Who Never Give Up, Families Against Mandatory Minimums, Hispanic Directors Association and Latino Leadership Alliance. Recently, both the Newark and Camden City Councils passed resolutions supporting S1866. When New Jersey adopted the Comprehensive Drug Reform Act in 1986, the state ushered in a radical era of harsh mandatory minimum sentences for nonviolent drug offenses. This led to unprecedented levels of incarceration and massive taxpayer expenditures. These unfair and ineffective laws have also had an egregiously disproportionate impact on communities of color. • In 1987, only 11 percent of the New Jersey prison population was incarcerated for drug offenses. Today, 29 percent of the prison population is incarcerated for nonviolent drug offenses. • Twenty years ago, only 11 percent of individuals in prison were serving mandatory minimum sentences—today 69 percent are serving mandatory terms. • In the last twenty years, New Jersey’s Corrections budget has risen from $289 million to $1.3 billion. • New Jersey spends $331 million a year to incarcerate individuals for nonviolent drug offenses. • The budget for corrections has grown by a factor of 13 while the overall budget grew only by a factor of six. • In the 1980s and 1990s, the Corrections budget grew at three times the rate of the budget for education. • Although African Americans and Latinos account for just 27 percent of the population of New Jersey, they represent 81 percent of the prison population. # # #
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United States

Sentencing: US Sentencing Commission to Review Mandatory Minimums

The US Sentencing Commission has been ordered by Congress to review mandatory minimum sentencing. The order came via the National Defense Authorization Act signed last month by President Obama. The act contains quietly added language calling on the commission to conduct several tasks, including examining the impact of mandatory minimum sentencing laws and exploring alternatives.

Congress began passing mandatory minimum laws in the 1980s, especially for drug and weapons offenses. In part as a direct result, the federal prison population has ballooned from 24,000 prisoners in 1980 to more than 209,000 last week. More than half of all federal prisoners are doing time for drug offenses.

Now, the Sentencing Commission is charged with issuing recommendations on mandatory minimums. But don't hold your breath -- this could take awhile.

"It's going to be a massive undertaking," the new chairman of the Sentencing Commission, William Sessions III, told the Wall Street Journal. Sessions said the review would range from weighing the impact of mandatory minimum sentencing on prison population figures and spending to assessing the social impact of those policies. "In my view," he said, "it's a very open-ended request."

Even if the Sentencing Commission were to eventually recommend changing or eliminating mandatory minimums, the final decision is up to Congress. In that regard, recent history is not very encouraging. The commission has for years formally recommended that Congress to undo the sentencing disparity between federal crack and powder cocaine offenses, but Congress has, rejected its advice, except for minor relief when it allowed changes in sentencing guidelines that reduced some crack sentences,although that may finally change this year or next.

When the commission last undertook a full-scale review of sentencing laws in 1991, there were 60 mandatory minimum offenses on the books. Now, there are 170.

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