Mandatory Minimums

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Feature: Obama's Appointees Raise Questions in the Drug Reform Community

Like other interest groups, the drug reform movement has the Obama transition under a microscope, searching for clues on the new administration's intentions as it scrutinizes those appointments for positions that are going to be key to advancing the cause. Some of the Obama transition team's early moves have some drug reformers sounding alarm bells, but other reformers -- not so much.

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Eric Holder -- not the reformer's dream pick
Drug reformers were not particularly enthralled with Obama's vice-president selection, Sen. Joe Biden (D-DE), who made a career authoring drug war legislation. Biden can rightfully claim to be the father of the drug czar's office, he was a big fan of harsh sentencing laws, he crafted the horrid RAVE Act. Never encountering a "drug problem" that couldn't be fixed with another federal criminal law, Biden most recently authored a bill that would criminalize being on board a home-made submarine carrying drugs.

While Biden may have begun to see the light in recent years -- he is author of one of the best bills seeking to address the crack/powder cocaine sentencing disparity (which he helped create) -- drug reformers remain deeply suspicious of a man who built a political power base on the shoulders of the assembled ranks of law enforcement.

Nor did the appointment of Rep. Rahm Emanuel (D-IL) as White House chief of staff alleviate concerns. While the sharp-elbowed political operative has not been a leading drug warrior, neither has he shied from using drug war discourse as a weapon against his political foes.

One oft-cited example of Emanuel's penchant for drug war rhetoric came a decade ago, when he defended the Clinton administration's unconstitutional effort to punish physicians who recommended medical marijuana to patients. "We are going to continue to find ways within the administration to fight legalization and the notion of legalization," he said in an interview. "We're against the message that [California's medical marijuana initiative] sends to children," Emanuel demagogued. (Emanuel, now a member of Congress, did vote for the pro-medical marijuana Hinchey amendment in July of last year.)

This week's announcement that former Deputy Attorney General Eric Holder would be nominated for the Attorney General post did little to allay mounting fears that Obama was filling key positions for drug policy with Clinton-era drug war holdovers. Some were quick to point to Holder's time as US Attorney for the District of Columbia, when he pushed through changes in DC's marijuana laws that made sales a felony instead of a misdemeanor.

As the Washington Post reported:

In addition, US Attorney Eric H. Holder Jr. said in an interview that he is considering not only prosecuting more marijuana cases but also asking the DC Council to enact stiffer penalties for the sale and use of marijuana. "We have too long taken the view that what we would term to be minor crimes are not important," Holder said, referring to current attitudes toward marijuana use and other offenses such as panhandling.

Holder said he hopes to discourage some of that activity by being tougher on marijuana crimes. New guidelines should be in place by the end of the month, he said, noting that the District could learn from New York's "zero-tolerance" policy. There, crime plummeted when police aggressively enforced quality-of-life crimes, including panhandling and public drinking, which gave officers an opportunity to check for drugs, guns and outstanding warrants.

That same year, he told the Washington Times he was considering proposing a mandatory-minimum 18-month sentence for any marijuana sales. That, at least, didn't happen.

Drug reformers took some small solace, however, from Holder's comments on mandatory minimum sentencing in a 1999 interview. Responding to a question about whether it was time to review mandatory minimums, Holder said:

I do not think that we should ever foreclose the possibility that we take a look at how the laws that we have passed are working. I tend to think that mandatory minimum sentences that deal with people who commit violent crimes are almost always good things. I think the concerns are generally raised about mandatory minimum sentences for nonviolent drug offenders. And I think there are some questions that we ought to ask.

I do not go into it with a presumption that they're necessarily bad, but we ought to look at the statistics and see, are we putting in prison, are we using our limited prison space for the kind of people that we want to have there? Are the sentences commensurate with the kind of conduct that puts people in jail for these mandatory minimum sentences?

Those are the kinds of questions I think that we ought to ask. And as thinking legislators on both sides, Republicans and Democrats, liberal and conservative, I would hope that we would ask those questions and then go into it with an open mind.

With drug war cheerleaders like Biden and Emanuel and professional drug warriors like Holder being invited to join the Obama team, drug reformers are understandably skittish. But most are taking a wait and see attitude, even as they bemoan some of Obama's choices.

"Some of the appointments, such as Holder, are certainly concerning," said Bruce Mirken, communications director for the Marijuana Policy Project. "There is some problematic stuff in the past, yes, but people do change and learn. Who would have thought that a drug warrior like Bob Barr would end up as a Libertarian?" Mirken asked. "I don't think that because somebody said or did something we disagreed with a decade ago, he is necessarily bound to those same positions now, but we will be watching closely. If the time comes to freak out, we will, but it's premature to freak out now."

The reform community should not be freaking out, agreed Eric Sterling, who served as counsel to the House Judiciary Committee in the 1980s and now heads the Criminal Justice Policy Foundation. Instead, it should be trying to flex its muscles.

"I think the reform community is way overreacting and, more importantly, not taking the initiative," he said "Reform leaders ought to be asking themselves what letters they've written to President-elect Obama, what letters to the editor they've penned, what op-eds they've submitted. Is the movement doing anything other than passively reacting?" he asked.

"Our movement has been under such assault for the past eight years that we're really out of practice in being effective political actors," Sterling argued. "I just contacted [the left-leaning magazine] In These Times suggesting an article about taxing marijuana as a way to prevent the lay-off of public employees. Our movement should be reaching out to people like the public employee unions, maybe buying ads saying 'No teacher should be fired until the legislature tells us how many legal marijuana could pay for.'"

"What you can say about Emanuel and these other people is that they are political and will respond to pressure," said Sterling. "If Emanuel thought our issues were good politics, he would be standing on the ramparts, but it's not good politics because we haven't made it good politics. It's not enough to mobilize the drug reform aficionados, we have to be working with much more powerful organizations and interest groups around issues they care about. The dire situation with the economy right now and the lack of revenues for state and local governments is a tremendous opportunity for us, exactly like 1933 in that sense. What did they do then? They ended Prohibition and taxed alcohol."

Marijuana does not enjoy the same cultural favor that alcohol did, Sterling noted, but that can be overcome. "We need to frame the issue in very stark economic terms. We need to be asking who is going to teach our kids? How are we going to pay for teachers? If the state taxing marijuana is the only way to pay for teachers, should we do it? That marijuana isn't going anywhere. It's still going to be smoked, whether we tax it or not. Why don't we benefit from it?"

"Drug policy reform has its work cut out for it," said Kevin Zeese, a long-time reformer who doubts either major party is ready for fundamental change. "The best we can hope for is a little benign neglect, and that they not continue to waste law enforcement resources on medical marijuana providers in states that allow it."

Given the plateful of problems facing the incoming administration and the state of the drug reform movement, a big push on drug policy on the federal level is unlikely, Zeese argued. "We should be working locally to continue to build momentum and a real movement," he said, suggesting that "benign neglect" could come into play. "If the reform movement continues to push state and local initiatives, I think the Obama administration will stay out of those conflicts. I don't think we'll see the drug czar flying off to different states to campaign against initiatives, and that would be a good thing."

A big push for drug reform is not only unlikely, it may be unwise at this time, Zeese suggested. "The caution Obama brings to the job, and Biden and Emanuel's histories present some room for us to maneuver, but it may be best not to poke the sleeping bear with a stick. We don't want to wake up the criminal justice advocates in the federal government. Benign neglect is better than abuse. Perhaps we should just work under the radar and allow their political caution to work for us, instead of against us."

While Zeese could tick off the bad drug policy stances of some of Obama's newly-forming inner circle, he suggested that those stances were based more on political calculations than ideological enthusiasm. "As chair of the Senate Judiciary Committee, Biden aligned himself with police and prosecutors -- that is his criminal justice base, that's where the power and safety is. Emanuel was a clear architect of the crime control acts under Clinton that increased police numbers and lengthened sentences. But both these guys are essentially political animals and will take what looks like a hard line to neutralize an issue."

One area that could be an early indicator of the Obama administration's drug reform proclivities is the ongoing DEA raids against California medical marijuana providers. Obama vowed during the campaign to halt those raids. But the big news there could be that there is no news.

"We expect that Obama will keep his promise about ending the raids in California," said MPP's Mirken. "There are plenty of reasons for him to do so, including Colorado, New Mexico, Nevada, and Michigan -- all states that had gone Republican, but that he carried. Whatever else you think about Obama and his team, they can count, and it's hard for me to imagine that they think it is in their interest to continue a war against a quarter of the country, most of whom voted for him," he said.

"That doesn't have to happen in dramatic fashion, you don't have to hold a press conference, it could just be something that happens quietly," said Mirken. "It may be awhile before anyone really sees for sure that a change has occurred. And that's fine -- we don't need a press conference as long as he stops arresting patients and caregivers."

"Obama is no doubt already thinking about a second term and doesn't want to make drug policy reform an issue of conflict with Republicans," said Zeese. "He will play it safe, but there is some opportunity for us there, and I think ending the raids is one of the things he could make happen. He'd prefer not to have medical marijuana patients and advocates angry at him in places like California and Oregon."

"I think he will stop the raids," said Sterling. "I don't see how the raids are helpful to him unless the Republicans are able to gin up some anger about providers, so it would be wise to stay low-key and continue to work with state and local officials so it is not controversial at the local level. But if it becomes controversial, and the Republicans are able to make it an issue, then Obama will be against us. We need to stay under the radar on this right now."

While reformers watch to see what does and doesn't happen regarding the DEA raids -- will they just quietly vanish into that long good night? -- there is still plenty of work to do, said Sterling. "We have to build the movement. We keep seeing the same 300 people at the conferences, maybe 1,000 if you're talking about the harm reduction conferences. No one is going door to door in the black community talking about how the drug war is undermining public safety and its relationship with the police. No one is talking to the unions. We've done well on the education part of our issue, but we haven't done well in developing a political power base, and until we do that, we won't get reform."

Feature: Looking Forward -- The Prospects for Drug Reform in Obama's Washington

The political landscape in Washington, DC, is undergoing a dramatic shift as the Democratic tide rolls in, and, after eight years of drug war status quo under the Republicans, drug reformers are now hoping the change in administrations will lead to positive changes in federal drug policies. As with every other aspect of federal policy, groups interested in criminal justice and drug policy reform are coming out of the woodwork with their own recommendations for Obama and the Democratic Congress. This week, we will look at some of those proposals and attempt to assess the prospects for real change.

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The White House
One of the most comprehensive criminal justice reform proposals, of which drug-related reform is only a small part, comes from a nonpartisan consortium of organizations and individuals coordinated by the Constitution Project, including groups such as the Sentencing Project, Families Against Mandatory Minimums (FAMM), and the Open Society Policy Center. The set of proposals, Smart on Crime: Recommendations for the Next Administration and Congress, includes the following recommendations:

  • Mandatory Minimum Reforms:
    Eliminate the crack cocaine sentencing disparity
    Improve and expand the federal "safety valve"
    Create a sunset provision on existing and new mandatory minimums
    Clarify that the 924(c) recidivism provisions apply only to true repeat offenders
  • Alternatives to Incarceration:
    Expand alternatives to incarceration in federal sentencing guidelines
    Enact a deferred adjudication statute
    Support alternatives to incarceration through expansion of federal drug and other problem solving courts.
  • Incentives and Sentencing Management
    Expand the Residential Drug Abuse Program (RDAP)
    Clarify good time credit
    Expand the amount of good time conduct credit prisoners may receive and ways they can receive it
    Enhance sentence reductions for extraordinary and compelling circumstances
    Expand elderly prisoners release program
    Revive executive clemency
  • Promoting Fairness and Addressing Disparity:
    Support racial impact statements as a means of reducing unwarranted sentencing disparities
    Support analysis of racial and ethnic disparity in the federal justice system
    Add a federal public defender as an ex officio member of the United States Sentencing Commission

The American Civil Liberties Union (ACLU) has also issued a set of recommendations, Actions for Restoring America: How to Begin Repairing the Damage to Freedom in America Under Bush, which include some drug reform provisions:

  • Crack/Powder Sentencing: The attorney general should revise the US Attorneys' Manual to require that crack offenses are charged as "cocaine" and not "cocaine base," effectively resulting in elimination of the disparity.
  • Medical Marijuana: Halt the use of Justice Department funds to arrest and prosecute medical marijuana users in states with current laws permitting access to physician-supervised medical marijuana. In particular, the US Attorney general should update the US Attorneys' Manual to de-prioritize the arrest and prosecution of medical marijuana users in medical marijuana states. There is currently no regulation in place to be amended or repealed; there is, of course, a federal statutory scheme that prohibits marijuana use unless pursuant to approved research. But US Attorneys have broad charging discretion in determining what types of cases to prosecute, and with drugs, what threshold amounts that will trigger prosecution. The US Attorneys' Manual contains guidelines promulgated by the Attorney general and followed by US Attorneys and their assistants.
  • The DEA Administrator should grant Lyle Craker's application for a Schedule I license to produce research-grade medical marijuana for use in DEA- and FDA-approved studies. This would only require DEA to approve the current recommendation of its own Administrative Law Judge.
  • All relevant agencies should stop denying the existence of medical uses of marijuana -- as nearly one-third of states have done by enacting laws -- and therefore, under existing legal criteria, reclassify marijuana from Schedule I to Schedule V.
  • Issue an executive order stating that, "No veteran shall be denied care solely on the basis of using marijuana for medical purposes in compliance with state law." Although there are many known instances of veterans being denied care as a result of medical marijuana use, we have not been able to identify a specific regulation that mandates or authorizes this policy.
  • Federal Racial Profiling: Issue an executive order prohibiting racial profiling by federal officers and banning law enforcement practices that disproportionately target people for investigation and enforcement based on race, ethnicity, national origin, sex or religion. Include in the order a mandate that federal agencies collect data on hit rates for stops and searches, and that such data be disaggregated by group. DOJ should issue guidelines regarding the use of race by federal law enforcement agencies. The new guidelines should clarify that federal law enforcement officials may not use race, ethnicity, religion, national origin, or sex to any degree, except that officers may rely on these factors in a specific suspect description as they would any noticeable characteristic of a subject.

Looking to the south, the Latin America Working Group, a coalition of nonprofit groups, has issued a petition urging Obama "to build a just policy towards Latin America and the Caribbean that unites us with our neighbors." Included in its proposals are:

  • Actively work for peace in Colombia. In a war that threatens to go on indefinitely, the immense suffering of the civilian population demands that the United States takes risks to achieve peace. If the United States is to actively support peace, it must stop endlessly bankrolling war and help bring an end to the hemisphere's worst humanitarian crisis.
  • Get serious -- and smart -- about drug policy. Our current drug policy isn't only expensive and ineffective, it's also inhumane. Instead of continuing a failed approach that brings soldiers into Latin America's streets and fields, we must invest in alternative development projects in the Andes and drug treatment and prevention here at home.

The National Organization for the Reform of Marijuana Laws (NORML) has some suggestions as well. As NORML's Paul Armentano wrote last week on Alternet:

  • President Obama must uphold his campaign promise to cease the federal arrest and prosecution of (state) law-abiding medical cannabis patients and dispensaries by appointing leaders at the US Drug Enforcement Administration, the US Department of Justice, and the US Attorney General's office who will respect the will of the voters in the thirteen states that have legalized the physician-supervised use of medicinal marijuana.
  • President Obama should use the power of the bully pulpit to reframe the drug policy debate from one of criminal policy to one of public health. Obama can stimulate this change by appointing directors to the Office of National Drug Control Policy who possess professional backgrounds in public health, addiction, and treatment rather than in law enforcement.
  • President Obama should follow up on statements he made earlier in his career in favor of marijuana decriminalization by establishing a bi-partisan presidential commission to review the budgetary, social, and health costs associated with federal marijuana prohibition, and to make progressive recommendations for future policy changes.

Clearly, the drug reform community and its allies see the change of administrations as an opportunity to advance the cause. The question is how receptive will the Obama administration and the Democratic Congress be to drug reform efforts.

"We've examined Obama's record and his statements, and 90% of it is good," said David Borden, executive director of StoptheDrugWar.org (publisher of this newsletter). "But we don't know what he intends to do in office. There is an enormous amount of good he can do," Borden said, mentioning opening up funding for needle exchange programs, US Attorney appointments, and stopping DEA raids on medical marijuana providers. "Will Obama make some attempt to actualize the progressive drug reform positions he has taken? He has a lot on his plate, and drug policy reform has tended to be the first thing dropped by left-leaning politicians."

There will be some early indicators of administration interest in drug reform, said Bill Piper, national affairs director for the Drug Policy Alliance. "We will be watching to see if he issues an executive order stopping the DEA raids; that would be a huge sign," he said. "He could also repeal the needle exchange funding ban. The congressional ban would still be in place, but that would show some great leadership. If they started taking on drug policy issues in the first 100 days, that would be a great sign, but I don't think people should expect that. There are many other issues, and it's going to take awhile just to clean up Bush's mess. I'm optimistic, but I don't expect big changes to come quickly."

"We are hoping to see a new direction," said Nkechi Taifa, senior policy analyst for civil and criminal justice reform for the Open Society Policy Center. "We couldn't have a better scenario with the incoming vice president having sponsored the one-to-one crack/powder bill in the Senate and the incoming president being a sponsor. And we have a situation in Congress, and particularly in the Senate, where there is bipartisan interest in sentencing reform. Both sides of the aisle want some sort of movement on this, it's been studied and vetted, and now Congress needs to do the right thing. It's time to get smart on crime, and this is not a radical agenda. As far as I'm concerned, fixing the crack/powder disparity is the compromise, and elimination of mandatory minimums is what really needs to be on the agenda."

"With the Smart on Crime proposals, we tried to focus on what was feasible," said the Sentencing Project's Kara Gotsch. "These are items where we think we are likely to get support, where the community has demonstrated support, or where there has been legislation proposed to deal with these issues. It prioritizes the issues we think are most likely to move, and crack sentencing reform is on that list."

The marijuana reform groups are more narrowly focused, of course, but they, too are looking for positive change. "Obama has made it very clear on the campaign trail that he disagrees with the use of federal agencies to undo medical marijuana laws in states that have passed them," said Dan Bernath, a spokesman for the Marijuana Policy Project. "He has vowed to stop that. Obama seems to be someone who values facts and reasoned decision-making. If he applies that to marijuana policy, that could be a good thing".

While the list of possible drug reforms is long and varied, it is also notable for what has not been included. Only NORML even mentions marijuana decriminalization, and no one is talking about ending the drug war -- only making it a bit kinder and gentler. The L-word remains unutterable.

"While we're optimistic about reducing the harms of prohibition, legalization is not something that I think they will take on," said Piper. "But any movement toward drug reform is good. If we can begin to shift to a more health-oriented approach, that will change how Americans think about this issue and create a space where regulation can be discussed in a a rational manner. Now, because of our moralist criminal justice framework, it is difficult to have a sane discussion about legalization."

"We didn't talk that much about legalization," said Gotsch in reference to the Smart on Crime proposals. "A lot of organizations involved have more ambitious goals, but that wouldn't get the kind of reaction we want. There just isn't the political support yet for legalization, even of marijuana."

"We should be talking about legalization, yes," said StoptheDrugWar.org's Borden, "but should we be talking about it in communications to the new president who has shown no sign of supporting it? Not necessarily. We must push the envelope, but if we push it too far in lobbying communications to national leadership, we risk losing their attention."

"I do think it would be a mistake to blend that kind of caution into ideological caution over what we are willing to talk about at all," Borden continued. "I think we should be talking about legalization, it's just a question of when and where," he argued.

Talking legalization is premature, said Eric Sterling, formerly counsel to the US House Judiciary Committee and now president of the Criminal Justice Policy Foundation. "What we are not yet doing as a movement is building upon our successes," he said. "We just saw medical marijuana win overwhelmingly in Michigan and decriminalization in Massachusetts, but the nation's commentariat has not picked up on it, and our movement has not been sufficiently aggressive in getting those votes translated into the political discourse. We haven't broken out of the making fun phase of marijuana policy yet."

Sterling pointed in particular to the medical marijuana issue. "Everyone recognizes that the state-federal conflict on medical marijuana is a major impediment, and we have 26 senators representing medical marijuana states, but not a single senator has introduced a medical marijuana bill," he said. "It's an obvious area for legislative activity in the Senate, but it hasn't happened. This suggests that we as a movement still lack the political muscle even on something as uncontroversial as the medical use of marijuana."

Even the apparent obvious targets for reform, such as the crack/powder sentencing disparity, are going to require a lot of work, said Sterling. "It will continue to be a struggle," he said. "The best crack bill was Biden's, cosponsored by Obama and Clinton, but I'm not sure who is going to pick that up this year. The sentencing reform community continues to struggle to frame the issue as effective law enforcement, and I think it's only on those terms that we can win."

Reformers also face the reality that the politics of crime continues to be a sensitive issue for the majority Democrats, Sterling said. "Crime is an issue members are frightened about, and it's an area where Republicans traditionally feel they have the upper ground. The Democrats are going to be reluctant to open themselves up to attack in areas where there is not a strong political upside. On many issues, Congress acts when there is a clear universe of allies who will benefit and who are pushing for action. I don't know if we are there yet."

Change is the mantra of the Obama administration, and change is what the drug reform community is hoping for. Now, the community must act to ensure that change happens, and that the right changes happen.

Feature: Sentencing Reform Initiative Defeated in California, "Tough on Crime" Initiatives Win in Oregon

Tough on crime can still trump smart on crime, if Tuesday's elections results on sentencing initiatives in two of the nation's most progressive states are any indication. In Oregon, voters approved two competing initiatives that will increase sentences and prison populations, while in California, a multi-million dollar campaign to dramatically reform sentencing went down in the face of opposition from prison guards and politicians, and another initiative that will see longer sentences and more prisoners was approved by voters.

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overcrowding at Mule Creek State Prison (from cdcr.ca.gov)
In California, the Drug Policy Alliance and the Campaign for New Drug Policies pumped nearly $8 million into the effort to pass Proposition 5, the Nonviolent Offenders Rehabilitation Act (NORA). NORA would have deepened and vastly expanded the "treatment not jail" sentencing reforms passed in 2001 as Prop. 36. While the Legislative Analyst's Office estimated it would cost $1 billion a year to implement, it also estimated that it would save $1 billion a year in prison costs, as well as $2.5 billion in savings from prisons that would not have to be built.

NORA had the near unanimous support of the drug treatment community, as well as the League of Women Voters of California, the Children's Defense Fund-California, the California Nurses Association, the California Federation of Teachers, the California Society of Addiction Medicine, the California State Conference of the NAACP and the National Council of La Raza, among others.

But a deep-pocketed opposition led by five current and former governors whose policies helped to create California's seemingly never-ending prison crisis and financed largely by the people who most directly benefit from increased prison populations, the California prison guards' union, undermined public support for NORA. The measure was also opposed by another group whose ox would have been gored, the drug court professionals -- arguably a part of the treatment community, but just as arguably a part of the law enforcement community. Several prominent state newspapers and actor Martin Sheen joined the opposition as well.

"It is a great threat to our neighborhoods," Gov. Arnold Schwarzenegger said at a news conference featuring the assembled governors outside the Criminal Courts Building in downtown Los Angeles last Thursday. "It was written by those who care more about the rights of criminals."

The measure "will cost dollars and it will cost lives," chimed in former Gov. Gray Davis, a Democrat, neglecting to mention that it would have saved many more dollars than it would have cost.

It wasn't just the governors. Sen. Dianne Feinstein and Attorney General Jerry Brown, also Democrats, opposed the measure too, and taped TV commercials against it. "Say no to drug dealers," Feinstein said in her ad, while Brown -- whose spot was paid for by the prison guards union -- called it "a complicated measure" that would "limit court authority over drug dealers and addicts who refuse treatment."

All told, the organized opposition pumped nearly $3.6 million into defeating NORA, more than half of it coming from the prison guards' union. And it worked -- on election day, NORA went down to defeat by a margin of 61% to 39%.

In a statement Tuesday evening when the outcome became apparent, Yes on 5 campaign spokeswoman Margaret Dooley-Sammuli laid the defeat at the door of the opposition. "Today we saw special interests overpower the public interest," she said. "California's prison guards poured millions of dollars into stopping Prop. 5 and securing this victory for the poison politics of crime."

Stopping NORA would be a pyrrhic victory, Dooley-Sammuli predicted, citing a looming federal court hearing on whether to take control of the overcrowded, under-budgeted prison system.

"The prosecutors and prison guards who led the campaign against Prop. 5 got their way tonight -- but they've really lost. The next step for our prisons will probably be a federal takeover. Prop. 5 was Californians' last, best chance to avoid a takeover and make our own choices about how to address prison overcrowding. Now federal judges are likely to impose solutions that no one will be happy about."

The effort to pass NORA was "not in vain," Dooley-Sammuli added. "Prop. 5 presented a vision for a future in which we do more for young people with drug problems, and improve the way we provide court-supervised treatment in California. There is plenty to build on going forward," she said.

But Golden State voters were still seduced by the "tough on crime" message that has played so well in California since the days of Ronald Reagan. While defeating NORA, they passed Proposition 9, also known as the Crime Victims Bill of Rights Act, by a margin of 53% to 47%. Naturally enough, the measure is concerned primarily with victims' rights, but also includes provisions that block local authorities from granting early release to prisoners to alleviate overcrowding and mandates that the state fund corrections costs as much as necessary to accomplish that end. It also lengthens the amount of time a prisoner serving a life sentence who has been denied parole must wait before re-applying. Currently, he must wait one to five years; under Prop. 9, he must wait three to 15 years. Prop. 9 would also allow parolees who have been jailed for alleged parole violations to be held 15 days instead of the current 10 before they are entitled to a hearing to determine if they can be held pending a revocation hearing, and stretches from 35 to 45 the number of days they could be held before such a hearing. These last two provisions, as well as one limiting legal counsel for parolees, all conflict with an existing federal court order governing California's procedures.

But if "tough on crime" still sells, another measure, Proposition 6, the Safe Neighborhoods Act, was too hard-sell even for California's crime-weary electorate. That measure, which was aimed primarily at gang members, violent criminals, and criminal aliens, also included provisions increasing penalties for methamphetamine possession, possession with intent, and distribution to be equal to those for cocaine, and provided for the expulsion from public housing of anyone convicted of a drug offense. The measure also mandates increased spending for law enforcement. It lost 69% to 31%.

"Tough on crime" worked this year in Oregon, too, with two competing measures that would ratchet up sentences and prison populations both passing. Measure 57, a legislative measure placed before the voters, and Measure 61, the brainchild of inveterate Oregon crime-fighter and initiative-generator Kevin Mannix, won with 61% and 51% of the vote, respectively.

The Mannix measure, the tougher of the two, would have set mandatory minimum sentences for a number of offenses, including drug sales, and is projected to add between 4,000 and 6,000 new inmates to the prison system over the next five years at a cost of between $500 million and $800 million. But because it garnered fewer votes than Measure 57, the latter is the one that will actually become law.

Measure 57 increases some sentences for repeat offenders and includes funding for behind-bars drug treatment. It is estimated to generate 1,670 additional prisoners over the next five years at a cost of $411 million, as well as requiring the state to borrow another $314 million for new prison construction.

Even with the national economy in a free-fall and state budgets increasingly feeling the squeeze, it looks like it's still easier to win with the politics of fear than with the politics of justice and compassion.

Feature: Drug Policy Reform and Sentencing Initiatives on the November Ballot

With election day little more than a month away, it is time for a round-up of drug policy reform initiatives facing voters in November. Not only are there a number of state-level initiatives dealing with marijuana decriminalization, medical marijuana, and sentencing reform (or its opposite), there are also a handful of initiatives at the county or municipal level.

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November 4th is coming up
But after a spate of drug reform initiatives beginning in the mid-1990s and continuing into the beginning of this decade, the pace has slowed this year. Of the 139 statewide initiatives identified by the Initiative and Referendum Institute as making the ballot this year, only seven have anything to do with drug reform, and four of those seek to increase sentences for various drug offenses.

Drug reformers have had an impressive run, especially with medical marijuana efforts, winning in Alaska, Arizona, California, Colorado, Maine, Montana, Nevada, Oregon, and Washington, and losing only in conservative South Dakota. Reformers also scored an impressive coup with California's "treatment not jail" initiative, Proposition 36, in 2002. At the municipal level, initiatives making adult marijuana offenses the lowest law enforcement priority have won in cities across California; as well as Denver; Seattle; Missoula County, Montana; Eureka Springs, Arkansas; and Hailey, Idaho. Detroit and several smaller Michigan cities have also approved municipal medical marijuana initiatives.

One reason for the slow-down in reformers' resort to the initiative process is that, as Marijuana Policy Project assistant communications director Dan Bernath put it, "We've already grabbed all the low-hanging fruit."

While medical marijuana initiatives have had an impressive run, the remainder of the 22 initiative and referendum states -- Arkansas, Idaho, Illinois, Massachusetts, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Utah, and Wyoming -- present a more difficult social and political terrain, in most cases. Running a successful initiative is also costly, said Bernath.

"Only half the states have initiatives, so there are only so many places where reformers can push them," he said. "And it is an expensive process that is often complicated. On the other hand, you don't have to rely on timid politicians. The voters are often way out in front of politicians on marijuana reform initiatives, and with an initiative, you don't have to worry about those timid politicians tinkering with your legislation and taking all the teeth out of it," Bernath noted. "As a general rule, I think most reformers would prefer to see something passed by the voters, that gives it a lot of legitimacy."

And that's just what reformers are trying to do with medical marijuana in Michigan and marijuana decriminalization in Massachusetts this year, both of which appear poised to pass. Likewise, in California, reformers are seeking to expand and deepen Prop. 36, but they also face a pair of sentencing initiatives aimed at harsher treatment of drug offenders. And next door in Oregon, anti-crime crusaders also have a pair of initiatives aimed at punishing drug offenders -- among others.

Here's a rundown of the statewide drug reform and/or sentencing initiatives:

CALIFORNIA: It's the battle of the crime and sentencing initiatives, with Proposition 5, the Nonviolent Offender Rehabilitation Act (NORA) going up against a pair of initiatives headed in the other direction. Building on the success (and limitations) of 2002's Prop. 36, Prop. 5 would expand the number of drug offenders diverted from prison into treatment, expand prison and parole rehabilitation programs, allow inmates earlier release for participating in such programs, and cut back the length of parole. It would also decriminalize the possession of up to an ounce of marijuana. Led by the Drug Policy Alliance Southern California office, the Yes on Prop. 5 campaign has won broad support from drug treatment professionals, with the notable exception of drug court advocates. But it also faces opposition, not only from the drug court crew and the usual law enforcement suspects, but also actor Martin Sheen and several prominent newspaper editorial boards. No polls on Prop. 5's prospects have been released. See our earlier in-depth reporting on Prop. 5 here.

Proposition 6, the Safe Neighborhoods Act, is primarily aimed at gang members, violent criminals, and criminal aliens, but also includes provisions increasing penalties for methamphetamine possession, possession with intent, and distribution to be equal to those for cocaine, and provides for the expulsion from public housing of anyone convicted of a drug offense. The measure also mandates increased spending for law enforcement. Read the California League of Women Voters' analysis of Prop. 6 here.

Proposition 9, also known as the Crime Victims Bill of Rights Act, unsurprisingly is concerned mostly with "victims' rights," but also includes provisions that would block local authorities from granting early release to prisoners to alleviate overcrowding and mandates that the state fund corrections costs as much as necessary to accomplish that end. It would also lengthen the amount of time a prisoner serving a life sentence who has been denied parole must wait before re-applying. Currently, he must wait one to five years; under Prop. 9, he must wait three to 15 years. Prop. 9 would also allow parolees who have been jailed for alleged parole violations to be held 15 days instead of the current 10 before they are entitled to a hearing to determine if they can be held pending a revocation hearing, and stretches from 35 to 45 the number of days they could be held before such a hearing. These last two provisions, as well as one limiting legal counsel for parolees, all conflict with an existing federal court order governing California's procedures. Read the California League of Women Voters' analysis of Prop. 9 here.

Ironically, both "tough on crime" initiatives have received significant funding and support from Henry Nicholas, the co-founder and former CEO of Broadcom. Nicholas has reportedly contributed at least $5.9 million to the initiatives. That was before he was indicted in June on federal fraud and drug charges. His indictment alleges that he kept properties for drug parties, supplied methamphetamine and cocaine to friends and prostitutes, and spiked technology executives' drinks with Ecstasy.

MASSACHUSETTS: The Committee for Sensible Marijuana Policy is sponsoring an initiative that would decriminalize the possession of up to an ounce of marijuana. Known as Question 2 on the November ballot, the initiative builds on nearly a decade's worth of work by local activists who ran dozens of successful ballot questions directed at individual representatives. Question 2 looks like almost a sure winner; it garnered 72% support in a mid-August poll. Still, late-organizing opposition has formed, primarily from the usual suspects in law enforcement and prosecutors' offices. See our earlier analysis of Question 2 here. (Massachusetts also has medical marijuana voter questions on the ballot in four towns.)

MICHIGAN: Michigan is poised to become the first medical marijuana state in the Midwest. An initiative sponsored by the Michigan Coalition for Compassionate Care and appearing on the ballot as Proposition 1 would allow patients suffering from debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health to use marijuana with a doctor's recommendation. It would require the department to create an ID card system for qualified patients and their designated caregivers and would allow patients and caregivers to grow small amounts of marijuana indoors in a secure facility. It would also permit both registered and unregistered patients and caregivers to assert a medical necessity defense to any prosecution involving marijuana. A poll released this week showed the measure gaining the approval of 66% of voters. Read our earlier analysis of the initiative and campaign here.

OREGON: While medical marijuana activists are working on a dispensary initiative for 2010, perennial Oregon "crime fighter" Kevin Mannix is once again looking to throw more people in prison. Ballot Measure 61, "Mandatory Sentences For Drug Dealers, Identity Thieves, Burglars, And Car Thieves," is pretty self-explanatory. It would impose mandatory minimum sentences for the manufacture or delivery of cocaine, heroin, or methamphetamine of 36 months in some cases and 30 months in others. It also lays out similar mandatory minimums for the other criminal offenders listed above. Mannix originally included a provision attempting to supplant the Oregon Medical Marijuana Program, but dropped it when it became apparent it could drag down the entire initiative.

Another measure initiated by the legislature and referred to the voters, Ballot Measure 57, would also increase penalties for the sale or distribution of cocaine, heroin, methamphetamine, and Ecstasy. It sets a sentencing range of 34 months to 130 months, depending on the quantity of the drug involved. The measure would also require drug treatment for certain offenders and impose sanctions for those who resist, provide grants to local jurisdictions for jails, drug courts, and treatment services, and limit judges' ability to reduce sentences.

LOCAL INITIATIVES: In addition to the statewide initiatives mentioned above, there are also a handful of municipal initiatives on the November 4 ballot. Here they are:

BERKELEY, CALIFORNIA: In Berkeley, Measure JJ seeks to broaden and regularize medical marijuana access. Supported by the Berkeley Patients Group and at least two city council members, the measure would expand the non-residential zones where dispensaries can locate, create an oversight commission including representatives from each of the three existing collectives to promulgate standards and determine whether relocating or future operators are in compliance, issue zoning certificates by right if operators meet standards, and bring Berkeley possession limits in line with recent state court rulings determining that such limits are unconstitutional. The ballot argument in favor of the measure can be viewed at the link above; no ballot argument opposing the measure has been submitted.

FAYETTEVILLE, ARKANSAS: The local grassroots organization Sensible Fayetteville is sponsoring an initiative that would make enforcement of adult marijuana possession laws the lowest law enforcement priority. It also includes language mandating city officials to write an annual letter to their state and federal representatives notifying them of the city's position and urging them to adopt a similar one. If the measure passes, Fayetteville will become the second Arkansas community to adopt such an ordinance. Nearby Eureka Springs did so in 2007.

FERNDALE, MICHIGAN: Ferndale passed a medical marijuana initiative in 2005, but this year a shadowy group known as the National Organization for Positive Medicine has placed an initiative on the ballot that would allow for the distribution of medical marijuana, but only by the National Organization for Positive Medicine. The initiative is not affiliated with the statewide medical marijuana initiative.

HAWAII COUNTY, HAWAII: Hawaii's Big Island (Hawaii County) will be voting on an initiative making adult marijuana possession offenses the lowest law enforcement priority. Ballot Question 1 not only makes adult possession offenses the lowest priority, it would also bar county law enforcement officials from accepting federal deputization or commissions to enforce laws in conflict with the initiative, prohibits the County Council from accepting or spending funds to enforce adult marijuana possession laws, and bar the County Council from accepting any funds for the marijuana eradication program. The initiative is sponsored by Project Peaceful Sky, a local grassroots organization whose name alludes to the disruption of tranquility caused by law enforcement helicopters searching for marijuana.

Alright, potential voters, there you have it. See you at the polls November 4.

Sentencing: Supreme Court 2nd Amendment Decision May Provide Opening for Appeal in Case of Pot Dealer Doing 55 Years for Carrying Gun

Weldon Angelos was a Salt Lake City marijuana dealer and aspiring hip-hop recording label empresario when he was busted in 2003. The federal marijuana charge could have sent him to prison for five years, but prosecutors also hit him with three counts of using a gun during the commission of a crime because he carried a pistol in an ankle holster on one occasion, had one in his car on another, and had more guns at home.

http://stopthedrugwar.org/files/weldonangelos.jpg
Weldon Angelos (via mpp.org)
Although Angelos was never accused of using or even brandishing a weapon, he was ultimately convicted and sentenced to a breathtaking mandatory minimum 55-year sentence on the gun charges. The federal judge who sentenced him said his hands were tied by mandatory minimum sentencing laws, forcing him to impose a sentence he called "unjust, cruel, and even irrational."

But now, in the wake of the US Supreme Court's pro-gun rights decision in District of Columbia et al. v. Heller, a well-known law professor and some collaborating attorneys are challenging Angelos' sentence. The high court's ruling should make it more difficult to add huge sentence enhancements simply because someone owns a gun, said Douglas Berman, a law professor at the Moritz College of Law at Ohio State University and author of the Sentencing Law and Policy blog.

Angelos appealed his draconian sentence, but a federal appeals court upheld it, and the Supreme Court declined to intervene. Now, Berman and company are seeking a new hearing to have his sentence overturned based on the Heller decision. No date has yet been set for that hearing.

"Most people think I'm crazy at first," Berman told the American Law Daily. "I'm fighting people on the left who think this guy's a bad person just because he touched a gun, and I'm fighting people on the right who like guns but don't like people like (Angelos) with guns. Heller says the Second Amendment has to mean something."

One attorney working on the case, Brian Heberlig, added that it was unfair to punish Angelos with an extra 25-year sentence "based solely on handguns passively stored in Angelos's home."

Some observers label the unique effort a long-shot, but for Weldon Angelos and others who, like him, are serving extra years or decades merely because they owned guns when they committed their drug offenses, it could be the only chance to ever see freedom again.

Feature: Drug Policy Reform and Sentencing Initiatives on the November Ballot

With election day little more than a month away, it is time for a round-up of drug policy reform initiatives facing voters in November. Not only are there a number of state-level initiatives dealing with marijuana decriminalization, medical marijuana, and sentencing reform (or its opposite), there are also a handful of initiatives at the county or municipal level.

http://www.stopthedrugwar.org/files/ballot2.jpg
November 4th is coming up
But after a spate of drug reform initiatives beginning in the mid-1990s and continuing into the beginning of this decade, the pace has slowed this year. Of the 139 statewide initiatives identified by the Initiative and Referendum Institute as making the ballot this year, only seven have anything to do with drug reform, and four of those seek to increase sentences for various drug offenses.

Drug reformers have had an impressive run, especially with medical marijuana efforts, winning in Alaska, Arizona, California, Colorado, Maine, Montana, Nevada, Oregon, and Washington, and losing only in conservative South Dakota. Reformers also scored an impressive coup with California's "treatment not jail" initiative, Proposition 36, in 2002. At the municipal level, initiatives making adult marijuana offenses the lowest law enforcement priority have won in cities across California; as well as Denver; Seattle; Missoula County, Montana; Eureka Springs, Arkansas; and Hailey, Idaho. Detroit and several smaller Michigan cities have also approved municipal medical marijuana initiatives.

One reason for the slow-down in reformers' resort to the initiative process is that, as Marijuana Policy Project assistant communications director Dan Bernath put it, "We've already grabbed all the low-hanging fruit."

While medical marijuana initiatives have had an impressive run, the remainder of the 22 initiative and referendum states -- Arkansas, Idaho, Illinois, Massachusetts, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Utah, and Wyoming -- present a more difficult social and political terrain, in most cases. Running a successful initiative is also costly, said Bernath.

"Only half the states have initiatives, so there are only so many places where reformers can push them," he said. "And it is an expensive process that is often complicated. On the other hand, you don't have to rely on timid politicians. The voters are often way out in front of politicians on marijuana reform initiatives, and with an initiative, you don't have to worry about those timid politicians tinkering with your legislation and taking all the teeth out of it," Bernath noted. "As a general rule, I think most reformers would prefer to see something passed by the voters, that gives it a lot of legitimacy."

And that's just what reformers are trying to do with medical marijuana in Michigan and marijuana decriminalization in Massachusetts this year, both of which appear poised to pass. Likewise, in California, reformers are seeking to expand and deepen Prop. 36, but they also face a pair of sentencing initiatives aimed at harsher treatment of drug offenders. And next door in Oregon, anti-crime crusaders also have a pair of initiatives aimed at punishing drug offenders -- among others.

Here's a rundown of the statewide drug reform and/or sentencing initiatives:

CALIFORNIA: It's the battle of the crime and sentencing initiatives, with Proposition 5, the Nonviolent Offender Rehabilitation Act (NORA) going up against a pair of initiatives headed in the other direction. Building on the success (and limitations) of 2002's Prop. 36, Prop. 5 would expand the number of drug offenders diverted from prison into treatment, expand prison and parole rehabilitation programs, allow inmates earlier release for participating in such programs, and cut back the length of parole. It would also decriminalize the possession of up to an ounce of marijuana. Led by the Drug Policy Alliance Southern California office, the Yes on Prop. 5 campaign has won broad support from drug treatment professionals, with the notable exception of drug court advocates. But it also faces opposition, not only from the drug court crew and the usual law enforcement suspects, but also actor Martin Sheen and several prominent newspaper editorial boards. No polls on Prop. 5's prospects have been released. See our earlier in-depth reporting on Prop. 5 here.

Proposition 6, the Safe Neighborhoods Act, is primarily aimed at gang members, violent criminals, and criminal aliens, but also includes provisions increasing penalties for methamphetamine possession, possession with intent, and distribution to be equal to those for cocaine, and provides for the expulsion from public housing of anyone convicted of a drug offense. The measure also mandates increased spending for law enforcement. Read the California League of Women Voters' analysis of Prop. 6 here.

Proposition 9, also known as the Crime Victims Bill of Rights Act, unsurprisingly is concerned mostly with "victims' rights," but also includes provisions that would block local authorities from granting early release to prisoners to alleviate overcrowding and mandates that the state fund corrections costs as much as necessary to accomplish that end. It would also lengthen the amount of time a prisoner serving a life sentence who has been denied parole must wait before re-applying. Currently, he must wait one to five years; under Prop. 9, he must wait three to 15 years. Prop. 9 would also allow parolees who have been jailed for alleged parole violations to be held 15 days instead of the current 10 before they are entitled to a hearing to determine if they can be held pending a revocation hearing, and stretches from 35 to 45 the number of days they could be held before such a hearing. These last two provisions, as well as one limiting legal counsel for parolees, all conflict with an existing federal court order governing California's procedures. Read the California League of Women Voters' analysis of Prop. 9 here.

Ironically, both "tough on crime" initiatives have received significant funding and support from Henry Nicholas, the co-founder and former CEO of Broadcom. Nicholas has reportedly contributed at least $5.9 million to the initiatives. That was before he was indicted in June on federal fraud and drug charges. His indictment alleges that he kept properties for drug parties, supplied methamphetamine and cocaine to friends and prostitutes, and spiked technology executives' drinks with Ecstasy.

MASSACHUSETTS: The Committee for Sensible Marijuana Policy is sponsoring an initiative that would decriminalize the possession of up to an ounce of marijuana. Known as Question 2 on the November ballot, the initiative builds on nearly a decade's worth of work by local activists who ran dozens of successful ballot questions directed at individual representatives. Question 2 looks like almost a sure winner; it garnered 72% support in a mid-August poll. Still, late-organizing opposition has formed, primarily from the usual suspects in law enforcement and prosecutors' offices. See our earlier analysis of Question 2 here.

MICHIGAN: Michigan is poised to become the first medical marijuana state in the Midwest. An initiative sponsored by the Michigan Coalition for Compassionate Care and appearing on the ballot as Proposition 1 would allow patients suffering from debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health to use marijuana with a doctor's recommendation. It would require the department to create an ID card system for qualified patients and their designated caregivers and would allow patients and caregivers to grow small amounts of marijuana indoors in a secure facility. It would also permit both registered and unregistered patients and caregivers to assert a medical necessity defense to any prosecution involving marijuana. A poll released this week showed the measure gaining the approval of 66% of voters. Read our earlier analysis of the initiative and campaign here.

OREGON: While medical marijuana activists are working on a dispensary initiative for 2010, perennial Oregon "crime fighter" Kevin Mannix is once again looking to throw more people in prison. Ballot Measure 61, "Mandatory Sentences For Drug Dealers, Identity Thieves, Burglars, And Car Thieves," is pretty self-explanatory. It would impose mandatory minimum sentences for the manufacture or delivery of cocaine, heroin, or methamphetamine of 36 months in some cases and 30 months in others. It also lays out similar mandatory minimums for the other criminal offenders listed above. Mannix originally included a provision attempting to supplant the Oregon Medical Marijuana Program, but dropped it when it became apparent it could drag down the entire initiative.

Another measure initiated by the legislature and referred to the voters, Ballot Measure 57, would also increase penalties for the sale or distribution of cocaine, heroin, methamphetamine, and Ecstasy. It sets a sentencing range of 34 months to 130 months, depending on the quantity of the drug involved. The measure would also require drug treatment for certain offenders and impose sanctions for those who resist, provide grants to local jurisdictions for jails, drug courts, and treatment services, and limit judges' ability to reduce sentences.

LOCAL INITIATIVES: In addition to the statewide initiatives mentioned above, there are also a handful of municipal initiatives on the November 4 ballot. Here they are:

BERKELEY, CALIFORNIA: In Berkeley, Measure JJ seeks to broaden and regularize medical marijuana access. Supported by the Berkeley Patients Group and at least two city council members, the measure would expand the non-residential zones where dispensaries can locate, create an oversight commission including representatives from each of the three existing collectives to promulgate standards and determine whether relocating or future operators are in compliance, issue zoning certificates by right if operators meet standards, and bring Berkeley possession limits in line with recent state court rulings determining that such limits are unconstitutional. The ballot argument in favor of the measure can be viewed at the link above; no ballot argument opposing the measure has been submitted.

FAYETTEVILLE, ARKANSAS: The local grassroots organization Sensible Fayetteville is sponsoring an initiative that would make enforcement of adult marijuana possession laws the lowest law enforcement priority. It also includes language mandating city officials to write an annual letter to their state and federal representatives notifying them of the city's position and urging them to adopt a similar one. If the measure passes, Fayetteville will become the second Arkansas community to adopt such an ordinance. Nearby Eureka Springs did so in 2007.

FERNDALE, MICHIGAN: Ferndale passed a medical marijuana initiative in 2005, but this year a shadowy group known as the National Organization for Positive Medicine has placed an initiative on the ballot that would allow for the distribution of medical marijuana, but only by the National Organization for Positive Medicine. The initiative is not affiliated with the statewide medical marijuana initiative.

HAWAII COUNTY, HAWAII: Hawaii's Big Island (Hawaii County) will be voting on an initiative making adult marijuana possession offenses the lowest law enforcement priority. Ballot Question 1 not only makes adult possession offenses the lowest priority, it would also bar county law enforcement officials from accepting federal deputization or commissions to enforce laws in conflict with the initiative, prohibits the County Council from accepting or spending funds to enforce adult marijuana possession laws, and bar the County Council from accepting any funds for the marijuana eradication program. The initiative is sponsored by Project Peaceful Sky, a local grassroots organization whose name alludes to the disruption of tranquility caused by law enforcement helicopters searching for marijuana.

Alright, potential voters, there you have it. See you at the polls November 4.

Feature: Poll Finds Broad Support for Doing Away with Mandatory Minimum Sentencing for Nonviolent Offenders

A poll released Wednesday by Families Against Mandatory Minimums (FAMM) found broad support for eliminating mandatory minimum sentencing for nonviolent offenders and a majority who said they would vote for politicians who acted to end them. The poll results challenge the longstanding conventional wisdom that politicians need to be "tough on crime" to win elections.

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federal courthouse, Alexandria, Virginia
According to the poll conducted by StrategyOne, an independent public opinion research firm, 78% thought the courts -- not Congress -- should determine how long people convicted of offenses should be imprisoned. Solid majorities also supported ending mandatory minimum sentences for nonviolent offenders (59%) and voting for congressional candidates who would act to end mandatory minimum sentencing (57%).

"Politicians have voted for mandatory minimum sentences so they could appear 'tough on crime' to their constituents. They insist that their voters support these laws, but it's just not true," says Julie Stewart, president and founder of FAMM. "Republicans and Democrats support change and that should encourage members of Congress to reach across the aisle next year and work together to reform mandatory minimums. Mandatory sentencing reform is not a partisan issue, but an issue about fairness and justice that transcends party lines."

"This poll suggests that a majority of Americans are open to re-examining this issue and moving to a court-driven sentencing model," said Sparky Zivin, research director at StrategyOne.

"I am amazed that such a high number of people even understood the difference between Congress doing sentencing and the courts doing it," said Nora Callahan, executive director of the November Coalition, an anti-prohibitionist group that focuses on freeing federal drug war prisoners. "I didn't think that many people would agree, but it seems that the public has grasped that crime has been politicized. That leads me to believe we will probably see a much greater understanding of what's wrong with our punitive drug laws and what's wrong with prohibition."

The poll results show that while politicians largely remain wedded to the "tough on crime" philosophy and the notion that it helps them win elections, the public is going in a different direction, said Callahan. "It's very dramatic; it's astonishing," she said. "This is very far from what the politicians are thinking; we are seeing that there is a huge gap there."

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overcrowded prisons
But even on Capitol Hill, there are a few voices calling for radical sentencing reform. Sen. Jim Webb (D-VA) has, since his election in 2006, been leading the charge. Webb has already held two hearings on sentencing and drug policy issues and will hold a third next month.

"America is locking up people at astonishing rates. In the name of 'getting tough on crime,' there are now 2.2 million Americans in federal, state, and local prisons and jails and over 7 million under some form of correction supervision, including probation and parole. We have the largest prison population in the world," said Webb in a statement included in FAMM's press release announcing the poll results. "This growth is not a response to increasing crime rates, but a reliance on prisons and long mandatory sentences as the common response to crime. It is time for America's leadership to realize what the public understands -- our approach is costly, unfair and impractical."

Webb is not alone. Even on the Republican side of the aisle, there are signs of support for sentencing reform. Rep. Bob Inglis (R-SC) is one GOPer who is ready for change.

"Mandatory minimums wreak havoc on a logical system of sentencing guidelines," said Inglis. "Mandatory minimums turn today's hot political rhetoric into the nightmares of many tomorrows for judges and families."

In addition to releasing the poll results Wednesday, FAMM also released a comprehensive new report, Correcting Course: Lessons From the 1970 Repeal of Mandatory Minimums, which details how Congress created mandatory minimum prison sentences for drug offenders in 1951 and repealed them in 1970 because the laws failed to stop drug abuse, addiction and trafficking. The politicians involved in overturning mandatory minimums in 1970 had no problem getting reelected, the report notes.

The report also looked at the rebirth of mandatory minimum sentencing in the fear-ridden 1980s and charts the ways they have been ineffective and counterproductive. According to the report, mandatory minimums:

  • Have not discouraged drug use in the United States.
  • Have not reduced drug trafficking.
  • Have created soaring state and federal corrections costs.
  • Impose substantial indirect costs on families by imprisoning spouses, parents, and breadwinners for lengthy periods.
  • Are not applied evenly, disproportionately impacting minorities and resulting in vastly different sentences for equally blameworthy offenders.
  • Undermine federalism by turning state-level offenses into federal crimes.
  • Undermine separation of powers by usurping judicial discretion.

"Our report and poll show that lawmakers can vote to reform mandatory minimums for nonviolent offenses and live to tell the story. Republicans and Democrats alike don't want these laws. They don't work, they cost taxpayers a fortune, and people believe Courts can sentence better than Congress can. Another repeal of mandatory drug sentences isn't just doable, it's doable right now," said Molly Gill, author of the report.

Criminal Justice Policy Foundation head Eric Sterling was counsel to the House Judiciary Committee in the mid-1980s, when some of the most draconian mandatory minimum drug laws were passed. He has been working to undo them ever since.

"In 1986, we got stuck with some of the most punitive, least effective criminal sentencing laws ever created, said Sterling. "Mandatory minimums haven't stopped the drug trade. They haven't locked up the big dealers and importers. They're applied to small fries, not kingpins. It's a waste of taxpayer dollars to lock up a street-level dealer for 10 years when that money could be spent on treatment, drug courts, or going after the people bringing in boatloads of drugs every year. Getting rid of mandatory minimums is about getting our priorities straight."

"Mandatory minimums are among the worst criminal justice policies ever adopted in this country," said FAMM's Stewart. "They treat all offenders the same, when the most sacred principle of American sentencing law is that punishment should fit the individual and the crime. Repealing these laws isn't impossible -- it's been done before. The next Congress should do it again," she said.

FAMM's report offers two options for dealing with mandatory minimums: Repealing them outright while leaving federal sentencing guidelines in place, which would allow for judicial discretion, or expanding the "safety valve," under which judges can ignore mandatory minimums in some circumstances.

With the US economy and federal budget under unprecedented pressure, and with elections looming that could dramatically alter the political landscape, the time for radical sentencing reform may be drawing nigh, but reformers aren't counting their chickens just yet.

"There could be a window opening," said the November Coalition's Callahan. "I won't start holding my breath until we see how the elections play out, but we're working hard and preparing to work even harder the next four years."

While a poll isn't going to change the mind of Congress, she said, it creates an opening, both with politicians and the public at large. "With these numbers, I can think of a lot of new ways to talk to people," she said. "Activists tend to think that people don't get it, but this poll shows that people do get it, and now people are even more cynical about their leaders. This helps create a definite climate for achieving reform."

NEW POLL: Americans Oppose Mandatory Minimums, Will Vote for Candidates Who Feel the Same

Press Release

EMBARGOED UNTIL:                                                                 

Sept. 24, 2008, 11:00 AM                                                                   

Contact:  Monica Pratt Raffanel, (678) 261-8118 or (202) 822-6700                                                                               

Press teleconference today! Wednesday, September 24 at 11 a.m. ET

Dial In Number: (800) 593-9034

Passcode:  FAMM (3266)

 

NEW POLL: Americans Oppose Mandatory Minimums,

Will Vote for Candidates Who Feel the Same

 

WASHINGTON, D.C. – A new poll released today by Families Against Mandatory Minimums (FAMM) shows widespread support for ending mandatory minimum sentences for nonviolent offenses and that Americans will vote for candidates who feel the same way. 

 

·         Fully 78 percent of Americans (nearly eight in 10) agree that courts – not Congress – should determine an individual’s prison sentence. 

·         Six in 10 (59 percent) oppose mandatory minimum sentences for nonviolent offenders.

·         A majority of Americans (57 percent) polled said they would likely vote for a candidate for Congress who would eliminate all mandatory minimums for nonviolent crimes.

 

“Politicians have voted for mandatory minimum sentences so they could appear ‘tough on crime’ to their constituents. They insist that their voters support these laws, but it’s just not true,” says Julie Stewart, president and founder of FAMM.  “Republicans and Democrats support change and that should encourage members of Congress to reach across the aisle next year and work together to reform mandatory minimums.  Mandatory sentencing reform is not a partisan issue, but an issue about fairness and justice that transcends party lines.” 

 

During a time of financial crisis and uncertainty in the United States, reviewing current criminal justice policies and reforming mandatory minimums for nonviolent drug offenders is an option that Democratic and Republican lawmakers are considering.  Although neither is endorsing FAMM’s poll or report, Senator Jim Webb (D-Va.) and Rep. Bob Inglis (R-S.C.) are both concerned about America’s prison and sentencing system.

 

America is locking up people at astonishing rates. In the name of ‘getting tough on crime,’ there are now 2.2 million Americans in federal, state, and local prisons and jails and over 7 million under some form of correction supervision, including probation and parole. We have the largest prison population in the world,” says Senator Jim Webb (D-Va.), who is chairing a symposium on criminal justice and prison issues in October.  “This growth is not a response to increasing crime rates, but a reliance on prisons and long mandatory sentences as the common response to crime. It is time for America’s leadership to realize what the public understands – our approach is costly, unfair and impractical.”

 

“Mandatory minimums wreak havoc on a logical system of sentencing guidelines,” says Rep. Bob Inglis (R-S.C.). “Mandatory minimums turn today’s hot political rhetoric into the nightmares of many tomorrows for judges and families.”

 

"This poll suggests that a majority of Americans are open to re-examining this issue and moving to a court-driven sentencing model,” said Sparky Zivin, Research Director at StrategyOne.

 

The poll bolsters the findings of FAMM’s comprehensive new report, Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, which describes how Congress repealed mandatory minimum sentences for drug offenses in 1970 – and had no trouble getting reelected. 

 

Our report and poll show that lawmakers can vote to reform mandatory minimums for nonviolent offenses and live to tell the story.  Republicans and Democrats alike don’t want these laws.  They don’t work, they cost taxpayers a fortune, and people believe Courts can sentence better than Congress can.  Another repeal of mandatory drug sentences isn’t just doable, it’s doable right now,” says Molly Gill, author of Correcting Course. 

 

The report details how Congress created mandatory minimum prison sentences for drug offenders in 1951 and repealed them in 1970 because the laws failed to stop drug abuse, addiction and trafficking. It also finds that after 20 years of experience, current mandatory minimums have failed as badly as those enacted in the 1950s.  Correcting Course concludes that mandatory minimum sentences:

 

• Have not discouraged drug use in the United States.

• Have not reduced drug trafficking.

• Have created soaring state and federal corrections costs.

• Impose substantial indirect costs on families by imprisoning spouses, parents, and breadwinners for lengthy periods.

• Are not applied evenly, disproportionately impacting minorities and resulting in vastly different sentences for equally blameworthy offenders.

• Undermine federalism by turning state-level offenses into federal crimes.

• Undermine separation of powers by usurping judicial discretion.

 

Eric Sterling, counsel to the House Judiciary Committee when mandatory sentences were enacted, says, “In 1986, we got stuck with some of the most punitive, least effective criminal sentencing laws ever created. Mandatory minimums haven’t stopped the drug trade.  They haven’t locked up the big dealers and importers.  They’re applied to small fries, not kingpins.  It’s a waste of taxpayer dollars to lock up a street-level dealer for 10 years when that money could be spent on treatment, drug courts, or going after the people bringing in boatloads of drugs every year.  Getting rid of mandatory minimums is about getting our priorities straight.”

 

Correcting Course includes comprehensive strategies for how Congress can repeal these ineffective laws today and better reflect the popular attitude among Americans, as brought out in the findings of the poll. 

 

“Mandatory minimums are among the worst criminal justice policies ever adopted in this country.  They treat all offenders the same, when the most sacred principle of American sentencing law is that punishment should fit the individual and the crime. Repealing these laws isn’t impossible – it’s been done before.  The next Congress should do it again,” says FAMM founder and president Julie Stewart.

 

FAMM’s poll was conducted by the independent public opinion research firm StrategyOne.  The survey was conducted by telephone between July 31 and August 3, 2008 with 1,000 adults randomly selected across the United States.  The margin of sampling error for the poll is plus or minus 3.1 percent for 95 out of 100 cases.

 

Families Against Mandatory Minimums is a national nonprofit, nonpartisan organization that supports fair and proportionate sentencing laws that allow judicial discretion while maintaining public safety. For more information on FAMM, visit www.famm.org or call Monica Pratt Raffanel at 678-261-8118.

 

 

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Feature: US Sentencing Commission to Examine Alternatives to Incarceration

The US Sentencing Commission, the panel that sets sentencing guidelines for federal courts, has signaled that it intends to focus next year on developing alternatives to imprisonment, a move that is welcomed by reform advocates, but opposed by conservatives and, likely, the Justice Department. The commission's intentions were mentioned in a recent filing in the Federal Register and come as a September 8 deadline for public comment has just passed.

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Created in 1984, the Sentencing Commission consists of seven presidential appointees who are then confirmed by the Senate Judiciary Committee. The panel is charged with making sentencing recommendations which automatically take effect unless Congress proactively votes to reject them.

While Congress has repeatedly enacted tough new sentences in bouts of anti-crime or anti-drug hysteria, the Sentencing Commission is less prone to political passions and more likely to act as a restraining influence on congressional incarceration mania. The commission, for example, has for more than a decade urged reforms of the crack/powder cocaine sentencing disparities that have seen thousands of African-Americans imprisoned for years for crack while mostly whites holding similar amounts of powder cocaine do far less time. Last year, the commission enacted changes in the federal sentencing guidelines to reduce sentences for crack offenders.

Despite objections from the Justice Department, the commission then went a step further, making the reductions retroactive so that some of the thousands of long-serving crack offenders could get out of prison a few months early.

But with some 2.3 million people behind bars in the US, including more than 200,000 in the federal system -- more than half of them drug offenders -- the commission signaled earlier this year that it wants to see more efforts to reduce those numbers. This summer, it hosted a two-day symposium on alternatives to incarceration, and now, with the Federal Register announcement, it appears the commission will continue down that path.

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"The summer symposium was a really good coming together of criminal justice experts," said Kara Gotsch, director of advocacy for the Sentencing Project, a Washington, DC-based think tank. "There were judges, probation and parole people, law enforcement, academics, and advocates there to talk about what the states are doing in relation to alternatives to incarceration. They discussed successful programs that are diverting people from prison. The commission has demonstrated its interest in this issue and has said it would distribute materials from the symposium, so we are hoping the commission will look to apply some of this to alternatives to incarceration at the federal level, including expanding the sentencing grid to include alternatives."

Not everyone was so excited. In a weekend story in the Wall Street Journal, the Justice Department seemed decidedly unimpressed. Spokeswoman Laura Sweeney said that while the department is interested about the use of expanded monitoring technologies, "we do not believe the use of alternatives should be expanded without further rigorous research showing their effectiveness in promoting public safety."

Similarly, Michael Rushford of the conservative, victims' rights-oriented Criminal Justice Legal Foundation warned that resorting to less mass incarceration could result in rising crime and violence. "I'm old enough to remember the 1960s and the sky-high crime and murder rates we had then," he said. "While there may be a role for diversion for young offenders, serious felony offenders need to be behind bars."

While it is unclear exactly what the commission might recommend, the summer symposium heard lots of talk about drug courts, residential and community corrections, and other alternatives to incarceration. It does seem clear that the commission wants to reduce the flow of new inmates before they get to the prison gates.

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"We're going to be looking at what might fit at the starting point, before somebody is sent to prison," District Court Judge Ricardo Hinojosa, chairman of the commission, told the Wall Street Journal. But the commission will move cautiously, he said.

"The commission's priorities for next year are not yet finalized," said Gotsch, who is hoping it will also consider further reforms of crack sentencing and the mandatory minimum sentencing structure. "But we are encouraged by the symposium and this announcement. Advocates like us and Families Against Mandatory Minimums (FAMM) will continue to push for modifications of the sentencing grid to make including alternatives to incarceration a priority. The issue is clearly on their radar, and that's a good thing," she said.

The Sentencing Commission can -- and should -- have an impact on Congress, Gotsch said. "If we can get them on board for alternatives to incarceration, that will be huge. When the commission speaks on a sentencing issue, Congress should listen."

Medical Marijuana: California Activist Grower Eddy Lepp Guilty in Federal Cultivation Case, Faces 10 Years to Life

Eddy Lepp, a medical and religious use of marijuana advocate named High Times "2004 Freedom Fighter of the Year," faces a mandatory minimum 10-year prison sentence and up to life after a federal jury in San Francisco found him guilty of conspiracy and cultivation of marijuana with the intent to distribute. Sentencing is set for December 1.

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Eddy Lepp (from indybay.org)
Lepp was arrested in 2004 after DEA agents said they found some 32,000 plants in gardens on his property near Upper Lake. Although US District Judge Marilyn Hall Patel ruled the seizure was based on an invalid search warrant, she allowed prosecutors to enter into evidence 24,000 plants that were growing in plain view of a state highway.

Under federal court rules, Lepp could not mount a medical marijuana defense, and Judge Patel also refused to let him mount a religious use defense. As she pondered the religious defense issue, Patel said that while it may have been possible in a personal use case, it could not apply in a case where someone was growing thousands of plants and distributing them to anonymous parishioners.

"I truly feel I was very, very railroaded by the system, and specifically by (US District) Judge Marilyn Patel," he told the Santa Rosa Press-Democrat after the verdict. Lepp said he is both a Rastafarian and a member of the Universal Life Church and that the marijuana was being grown for spiritual as well as medicinal purposes.

Lepp told the court that the plants, grown at a site known as "Eddy's Medicinal Gardens," were not his, but were being grown cooperatively by members of his church, the The Multi-Denominational Ministry of Cannabis & Rastafari. "All I did was make the land available to the ministry," he said.

Lepp is a well-known promoter of marijuana legalization and in recent years has been a fixture at West Coast marijuana reform conferences and festivals. Until she took ill, dying last November, his wife, Linda Senti, was his constant companion. The couple worked to gather petitions for Proposition 215 in 1996 and lobbied Lake County supervisors to set medical marijuana standards. Lepp was also known for publicly smoking marijuana in front of the federal building in Santa Rosa in 2002 in support of medical marijuana.

His attorneys said they planned to appeal on the religious defense and possibly other grounds. If those appeals fail, Lepp will spend much -- if not all -- of the rest of his life in the federal gulag.

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