Mandatory Minimums

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Crack Sentencing Gets a Hearing on Capitol Hill While Advocates Mobilize

With the early release of some crack cocaine prisoners set to get underway next week and pressure mounting to do something about the disparity between sentences for crack and powder cocaine offenses, the House of Representatives this week turned its attention to the issue. A Tuesday hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security saw spirited discussion of both retroactive sentence reductions for current crack prisoners and a number of bills that seek to address the disparities between crack and powder sentences.

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Alva Mae Groves died in prison at age 86 while serving a 24-year crack cocaine sentence after refusing to testify against her children. (photo courtesy november.org)
Also Tuesday, as House members debated the merits of the various proposals, drug reform, civil rights, and civil liberties groups led a day of lobbying on the Hill. Key for the activists was maintaining retroactivity so that sentence reductions for crack offenders will apply to those currently imprisoned and persuading Congress members to come together behind a sentencing reform bill that will reduce disparities.

The day of lobbying was kicked off with a morning press conference featuring Reps. Bobby Scott (D-VA), Bobby Rush (D-IL), Sheila Jackson-Lee (D-TX), and Chris Shays (R-CT), as well as former crack prisoners Dorothy Gaines and Michael Short, who was granted clemency in December by President Bush after serving more than 15 years. After that, it was on to the Hill.

"We were in meetings all day," said Bill Piper, national affairs director for the Drug Policy Alliance, which joined forces with state delegations and national organizations including the ACLU, the Sentencing Project, and Families Against Mandatory Minimums in the day of action on the Hill. "There were a lot of good interactions, and there is a lot of optimism about the prospects for change on the Hill. There is a strong sense that legislation could move in the next week or two," he said.

The question is which legislation? At least four bills -- H.R. 79, H.R. 360, H.R. 4545, and H.R. 5035 -- that would address the crack-powder cocaine sentencing disparity have been introduced in the House, and there are more in the Senate. They mandate changes ranging from completely equalizing crack and powder sentencing to reducing the discrepancy to a ratio of 20:1.

Under current sentencing laws, written during the crack hysteria of the mid-1980s, it takes 500 grams of powder cocaine to earn a five-year mandatory minimum prison sentence, but only 5 grams of crack. That 100:1 disparity has resulted in the imprisonment of thousands of people, mostly black (even though most crack users are white), for lengthy periods of time.

"It appears that most members of Congress, as well as the public, agree that the current disparity in crack and powder cocaine penalties is not justified and that it should be fixed," said subcommittee chair Rep. Scott as he kicked off Tuesday's hearing. "However, there is not yet a clear consensus on what that fix should be."

The basis for the sentencing disparity between crack and powder was based not on science or evidence, "but political bidding based on who could be the toughest on the crack epidemic that was believed to be sweeping America several years ago," Scott said. "There is certainly no sound basis for a five-year mandatory minimum sentence for the mere possession of five grams of crack, when you could get probation for possessing a ton of powder, because mandatory minimum sentences for powder only apply to distribution, not possession cases."

Scott then offered his bill, H.R. 5035, as the best fix. "It is a simple bill that goes the furthest in addressing the problems in the current cocaine sentencing laws," Scott said. "First, it eliminates the legal distinction between crack and powder cocaine, treating them as the same drug, which they are. The bill also eliminates all mandatory minimum sentences for cocaine offenses. And lastly, it authorizes funding for state and federal drug courts, which have both proven to be effective in preventing recidivism and saving money, when compared to longer periods of incarceration."

Rep. Charles Rangel (D-NY), one of the architects of tough crack sentencing laws in the 1980s, was singing a different tune Tuesday -- as he has for some years now. "There's no question in my mind that those people who thought that people involved with possession of crack should be sentenced at higher thought that it would in some way serve the community better," he said. "Clearly, that is not the case, and we find that to take the discretion in determining who goes to jail and who doesn't go to jail is showing lack of confidence in our judges."

Rep. Jackson-Lee, whose own bill, H.R. 4545, also addresses the crack-powder sentencing disparity, said it was time to "finally eliminate the unjust and unequal" disparities and "right the wrongs" created by the harsh anti-drug laws of the 1980s. "For the last 21 years," said Jackson-Lee, "we have allowed people who have committed similar crimes to serve drastically different sentences for what we now know are discredited and unsubstantiated differences."

It wasn't entirely an anti-disparity, pro-reform love fest in the committee, though. Ranking minority member Rep. Louie Gohmert (R-TX) said that while he supported efforts to redress the crack-powder sentencing disparity, he was worried that the Sentencing Commission's decision to make changes in the sentencing guidelines retroactive would lead to the release of violent criminals. "As a former judge and chief justice, I am vigilantly reluctant to legislatively overturn the past judgment of judges or juries, who were in the best position to consider the offense and the offender," he said.

He was echoed by a Justice Department representative. "Any reforms should come from the Congress, not the US Sentencing Commission; and second, any reforms, except in very limited circumstances, should apply only prospectively, not retroactively," testified Gretchen Schappert, US Attorney for the Western District of North Carolina, laying out the Justice Department position. "We continue to believe that a variety of factors fully justify higher penalties for crack offenses. It has been said, and certainly it has been my experience, that whereas powder cocaine destroys an individual, crack cocaine destroys a community." DOJ chief Michael Mukasey has been trying to stymie retroactive releases as well, and the DOJ home page currently devotes its top link to a speech he gave to the Fraternal Order of Police on the topic.

But the committee also heard from Michael Short, a Baltimore man who served nearly 16 years in prison for selling two ounces of crack before President Bush granted him clemency last year. "I know what I did was wrong," Short told the committee. "I sold illegal drugs, and I deserved to be punished. But what I did and who I was did not justify the sentence I received. And while today I am telling my story, it is also the story of many men that I know in prison, nonviolent offenders serving 10, 20 or 30 years for crack cocaine offenses. I did not need 20 years to convince me of the error in my ways, to punish me or to set me on a right path. My sentence was altogether too long. It was too long because of the way the law treats crack cocaine. Twenty years is the kind of sentence that drug kingpins should get -- big-time drug dealers. But I was not a drug kingpin. I was sentenced like one, because the drug I was convicted for was crack cocaine."

Short also took issue with the characterization by the Justice Department and some committee members of crack offenders as dangerous criminals. "I have heard some of the comments some people in positions of power have made about crack cocaine prisoners -- that we are violent gang members and that this is why our sentences have to be so much longer. I am not that person, and most of the people that I leave behind in prison aren't either," he said. "Although I made a terrible mistake, there was no violence in my crime. I was not a gang member. I was sentenced for such a long time because of a stereotype."

Now, with hearings having been held in both chambers of the Congress -- the Senate held one two weeks ago -- it is time to get those bills moving. And that is what is happening behind the scenes on the Hill, said Piper.

"Senators Sessions, Biden, and Hatch are sitting down and trying to work out a compromise," he said. "They're trying to come up with something they can all agree on that will also pass on the floor. My sense is that it will not be the complete elimination of the sentencing disparity, but somewhere in between Hatch's 20:1 ratio and Biden's 1:1. It will likely end up being 5:1 or 10:1," Piper predicted.

Reducing the crack-powder sentencing disparity would be a "wonderful development," said Robert Weiner, former public affairs director for drug czar Gen. Barry McCaffrey. "These sentences are just crazy, they're part of the gross distortion of the criminal justice system. If you're going to do the crime, you should do the time, but it should be the same time for the same crime," he said.

But the Justice Department's strident effort to roll back retroactivity could throw a wrench in the works, Piper warned. "That is a complicating factor," he conceded. "We hope to keep that out of any compromise bill. Thousands of families are waiting for their loved ones to come home soon, and we don't want to disappoint them."

Now, after years of inaction, Congress may finally act. But it's not a done deal yet, and there is many an obstacle between here and the passage of a bill that would restore a measure of justice to crack cocaine sentences.

Sentencing: Faced With Swollen Prisons, Idaho Ponders Reforms

With nearly 7,500 people behind bars in Idaho -- more than half of them for drug offenses -- the Idaho legislature is finally beginning to move away from the "tough on crime" posturing and infliction of mandatory minimum drug dealing sentences that helped create the current crisis. A bill with bipartisan support that would give Idaho judges the option to send people convicted of drug distribution offenses to treatment instead of mandatory prison terms if they are found to be addicts is on the move in Boise.

House Bill 516, sponsored by three Republicans and one Democrat, is in line for a full hearing at the House Judiciary, Rules and Administration Committee this session. The bill would mark a departure for Idaho, which for years has responded to illegal drug use and sales by ratcheting up penalties.

But even the bill's sponsors are still playing to the punishment choir, if the Associated Press got it right. Rep. Nicole LeFavour (D-Boise), a cosponsor of the bill, told the committee Monday most people convicted of drug distribution offenses deserved harsh sentences. But, she said, those involved in small-time dealing because of their addictions should get a chance at treatment instead. "For these rare instances, this will allow for an alternative sentence by judges," she said. "If treatment is provided, that provides the best chance of recovering."

Under current Idaho law, most drug dealing convictions require mandatory minimum sentences of three to five years. Some methamphetamine and meth precursor offenses carry 10-year mandatory minimums, though.

The bill "ain't a bad idea," Rep. Dick Harwood (R-St. Maries) told the AP. "Our prisons are pumped full. It would be nice to give judges discretion about whether to send somebody to prison or to some other treatment program. In reality, they're the ones that are sitting on the front lines, not the legislators who are making the laws."

There is also a another bill aimed at sentencing reform in Idaho. Rep. Jim Clark (R-Hayden) has introduced a bill that would expand misdemeanor drug courts. It is aimed at stopping minor offenders from developing full-blown substance abuse problems. If these bills are truly harbingers of a new approach in the Gem State, it's about time.

Drug War Chronicle Book Review: "Snitch: Informants, Cooperators, and the Corruption of Justice," by Ethan Brown (2007, Public Affairs Press, 273 pp., $25.95 HB)

When a Baltimore hustler clothing line manufacturer and barber named Rodney Bethea released a straight-to-DVD documentary about life on the mean streets of West Baltimore back in 2004 in a bid to further the hip-hop careers of some of his street-savvy friends, he had no idea "Stop Fucking Snitching, Vol. I" (better known simply as "Stop Snitching") would soon become a touchstone in a festering conflict over drugs and crime on the streets of America and what to do about it.

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In a steadily rising crescendo of concern that reached a peak earlier this year when CBS' 60 Minutes ran a segment on the stop snitching phenomenon, police, politicians and prosecutors from across the country, but especially the big cities of the East Coast, lamented the rise of the stop snitching movement. Describing it as nothing more than witness intimidation by thugs out to break the law and get away with it, they charged that "stop snitching" was perverting the American justice system.

Not surprisingly, the view was a little different from the streets. Thanks largely to the war on drugs and the repressive legal apparatus ginned up to prosecute it, the traditional mistrust of police and the criminal justice system by poor, often minority, citizens has sharpened into a combination of disdain, despair, and defiance that identifies snitching -- or "informing" or "cooperating," if one wishes to be more diplomatic -- as a means of perpetuating an unjust system on the backs of one's friends and neighbors.

At least that's the argument Ethan Brown makes rather convincingly in "Snitch." According to Brown, the roots of the stop snitching movement can be traced directly to the draconian drug war legislation of the mid-1980s, when the introduction of mandatory minimums and harsh federal sentencing guidelines -- five grams of crack can get you five years in federal prison -- led to a massive increase in the federal prison population and a desperate scramble among low-level offenders to do anything to avoid years, if not decades, behind bars.

The result, Brown writes, has been a "cottage industry of cooperators" who will say whatever they think prosecutors want to hear and repeat their lies on the witness stand in order to win a "5K" motion from prosecutors, meaning they have offered "substantial assistance" to the government and are eligible for a downward departure from their guidelines sentence. Such practices are perverse when properly operated -- they encourage people to roll over on anyone they can to avoid prison time -- but approach the downright criminal when abused.

And, as Brown shows in chapter after chapter of detailed examples, abuse of the system appears almost the norm. In one case Brown details, a violent cooperator ended up murdering a well-loved Richmond, Virginia, family. In another, the still unsolved death of Baltimore federal prosecutor Richard Luna, the FBI seems determined to obscure the relationship between Luna and another violent cooperator. In still another unsolved murder, that of rapper Tupac Shakur, Brown details the apparent use of snitches to frame a man authorities suspect knows more about the killing than he is saying. In perhaps the saddest chapter, he tells the story of Euka Washington, a poor Chicago man now doing life in prison as a major Iowa crack dealer. He was convicted solely on the basis of uncorroborated and almost certainly false testimony from cooperators.

The system is rotten and engenders antipathy toward the law, Brown writes. The ultimate solution, he says, is to change the federal drug and sentencing laws, but he notes how difficult that can be, especially when Democrats are perpetually fearful of being Willy Hortoned every time they propose a reform. The current glacial progress of bills that would address one of the most egregious drug war injustices, the crack-powder cocaine sentencing disparity, is a sad case in point.

Brown addresses the quickness with which police and politicians blamed the stop snitching movement for increases in crime, but calls that a "distraction from law enforcement failures." It's much easier for cops and politicians to blame the streets than to take the heat for failing to prosecute cases and protect witnesses, and it's more convenient to blame the street than to notice rising income equality and a declining economy.

While Brown doesn't appear to want to throw the drug war baby out with the snitching bathwater, he does make a few useful suggestions for beginning to change the way the drug war is prosecuted. Instead of blindly going after dealers by weight, he argues, following UCLA professor Mark Kleiman, target those who engage in truly harmful behavior. That will not only make communities safer by ridding them of violent offenders, it will reduce the pressure to cooperate by low-level offenders as police attention and resources shift away from them.

Cooperating witnesses also need greater scrutiny, limits need to be put on 5K motions, cooperator testimony must be corroborated, and perjuring cooperators should be prosecuted, Brown adds. Too bad he doesn't have much to say about what to do with police and prosecutors who knowingly rely on dishonest snitches.

"It was never meant to intimidate people from calling the cops," Rodney Bethea said of his DVD, "and it was never directed at civilians. If your grandmother calls the cops on people who are dealing drugs on her block, she's supposed to do that because she's not living that lifestyle. When people say 'stop snitching' on the DVD, they're referring to criminals who lead a criminal life who make a profit from criminal activities... What we're saying is you have to take responsibility for your actions. When it comes time for you to pay, don't not want to pay because that is part of what you knew you were getting into in the first place. Stop Snitching is about taking it back to old-school street values, old-school street rules."

Playing by the old-school rules would be a good thing for street hustlers. It would also be a good thing for the federal law enforcement apparatus. It's an open question which group is going to get honorable first.

Law Enforcement: Chicago's Courts Are in Crisis, and the Drug War Is a Big Contributor, Report Finds

Judges in Chicago's main Criminal Court Building at 26th and California hear some 28,000 felony cases a year, with each judge hearing about 800, or about four per judge per work day. Nonviolent, drug-related charges make up more than half of them, according to a report recently released by the Chicago Appleseed Fund for Social Justice, a research and advocacy organization focused on social justice and governmental effectiveness, especially regarding the criminal justice system. The clogging of the courts with low-level drug offenders is a major factor in a gravely dysfunctional criminal justice system, the report concludes.

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Cook County court house (chicagopc.info)
Based on more than 100 interviews with criminal justice system professionals, more than 160 hours of courtroom observation of more than 500 proceedings, interviews with victims, defendants, witnesses, and family members, and surveys of judges, prosecutors, and public defenders, A Report on Chicago's Felony Courts is a thorough, comprehensive, and eye-opening look at the way justice is served in one of the nation's largest cities.

"The sheer volume of cases in Chicago's felony courts overwhelms the judges,
prosecutors, and public defenders," the report notes in the first sentence of its executive summary. After enumerating the dimensions of the crisis, the report's authors go on to make a series of findings and recommendations aimed at everyone from the state legislature (it "has overburdened the criminal courts by passing criminal laws without regard to cost, impact, or resources" and should quit doing so) to the Cook County Board (quit using the courts for patronage, provide them with sufficient resources) to the 26th Street court administrators (increase professionalism, improve facilities).

But the bulk of the report's recommendations are devoted to dealing with nonviolent drug offenders. As the authors noted in describing the problem: "Non-violent, drug-related charges make up more than half of the cases. When asked to identify changes they would like to see in the criminal justice system, more than a third of the professionals focused on drug cases. There was nearly unanimous frustration: 'Drug cases have crippled the system,' said one prosecutor. Another prosecutor said: 'We've become a factory mill, just concerned with the disposition of the case. There's not enough consideration of if the person needs prison time or needs an extra attempt at rehabilitation.' The volume of drug prosecutions is dealt with through assembly-line plea bargaining. There is a feeling of grim reality among courtroom professionals about the system's inability to rehabilitate addicts, but there is no consensus about how to deal with drug abuse. Many judges believe that the existing alternative treatment programs are ineffective. Another prosecutor said that the system 'has no choice' but to ship offenders to prison.

"Because of the restricted sentencing options," the authors continued, "prosecutors and judges try to avoid treating these drug cases as felonies, especially for first-time offenders. 'People charged with small amounts of possession usually are dismissed because of the number of cases,' notes one prosecutor, 'and those are the cases that should be getting treatment alternatives.' There is also a strong incentive for defendants to plead guilty to drug charges to avoid harsh minimum sentences. Even though reduced charges in drug cases may allow for probation instead of jail
time, many offenders fail probation because the system does not provide the supervision and rehabilitation needed to return them to productive society. One former probation officer told us, 'adult probation that provides only one unsupervised check-in is useless as a way to give real services.' Judges vary as to whether they enforce the conditions of probation. Probation cannot work without a well-funded, consistently applied program."

Noting that many drug offenders can be rehabilitated and arguing that their potential value as productive members of society merits more flexibility, the report made the following recommendations:

  • Increase funding for and oversight of the probation system.
  • Expand the use of private, community-based organizations for supervised, rehabilitative probation.
  • Redefine young, nonviolent offenders as a "post juvenile" category of defendants.
  • Expunge criminal record after successful completion of probation.
  • Create up to four new drug courts with a focus on diversion/treatment programs.
  • Facilities are needed with courtrooms dedicated exclusively to narcotics cases in which the defendants are eligible for diversion and cases involving mental health issues.
  • Create, through legislation, a station adjustment model for dealing with possession of small amounts of controlled substances. [Editor's Note: A "station adjustment" allows police to handle a matter without involving the court system, i.e. with a warning or a referral to a treatment program.]
  • The drug school concept, operated on a deferred prosecution basis by the State's Attorney's Office, should be expanded. The Juvenile Drug School Program, eliminated due to budget constraints, should be re-established.
  • Increase training for defense counsel, prosecutors, and judges about the availability of diversion and treatment programs.
  • In creating legislation, attention should be paid to replacing mandatory minimum jail sentences with treatment and rehabilitation alternatives.

Chicago area judges, politicians, and legislators have expressed interest in the report and its findings. Whether that interest holds past the next news cycle remains to be seen. In the meantime, the wheels of justice grind on in the City of Big Shoulders, but just barely.

Feature: Pressure Mounts on Congress As Supreme Court, Sentencing Commission Both Act to Cut Crack Cocaine Sentences

Both the US Supreme Court and the US Sentencing Commission acted this week to redress inequities in the sentencing of federal crack cocaine defendants, but changes in sentencing will be only marginal unless Congress acts to amend or undo the minimum sentences it has mandated for crack. Several bills to do so are pending, but Congress has yet to act on them.

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Karen Garrison, with picture of sons Lawrence & Lamont, innocent students convicted for crack and powder cocaine conspiracy (picture from sentencingproject.org)
Still, the harsh crack cocaine sentencing policies that have been in place for more than two decades took a one-two punch this week. On Monday, the Supreme Court upheld a sentencing decision by a federal district court judge to sentence a crack defendant to a sentence well below the federal sentencing guidelines. The following day, the Sentencing Commission announced that its earlier decision to scale down crack sentences would apply to nearly 20,000 federal inmates doing time on crack charges.

In the Supreme Court, the justices voted 7-2 to allow federal judges discretion to sentence offenders to prison terms well below the punishment range set by federal sentencing guidelines. The ruling came in a pair of cases, Kimbrough v. US and Gall v. US. The decisions offer important guidance to federal judges who have been wrestling with sentencing issues since the Supreme Court in 2005 held that federal sentencing guidelines were no longer mandatory, but only advisory.

In the first case, the trial judge sentenced convicted crack dealer Derrick Kimbrough to 10 years for his drug offense even though the guidelines called for a 14-to-17 1/2 year sentence. That judge called the guidelines "ridiculous" and "clearly inappropriate" when applied to Kimbrough. A federal appeals court in Richmond vacated the sentence, declaring that a sentence so far beneath the guidelines was unreasonable. But the Supreme Court disagreed.

"The district court properly homed in on the particular circumstances of Kimbrough's case and accorded weight to the Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with [the federal sentencing law]," wrote Justice Ruth Bader Ginsburg for the majority.

In her opinion in Kimbrough, Justice Ginsburg noted the ongoing controversy over the crack-powder cocaine sentencing disparity -- it takes 100 times as much powder cocaine as crack cocaine to trigger mandatory minimum sentences -- and wrote that judges could keep that in mind when sentencing crack defendants. "Given all this," she wrote, "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary."

In the second case, Brian Gall had been sentenced to probation for his role in an ecstasy distribution ring while he was a college student. The judge in the case cited Gall's brief participation in the scheme and his law-abiding life since then in departing from the sentencing guidelines, which called for three years in prison. That sentence was vacated by a federal appeals court in St. Louis, which held that Gall's punishment was unreasonably light. The sentencing judge must show extraordinary circumstances to justify such a sentence, the appeals court held. That's not necessary, the Supreme Court held.

"An appellate court may take the degree of variance into account and consider the extent of deviation from the guidelines, but it may not require 'extraordinary' circumstances or employ a rigid mathematical formula," wrote Justice John Paul Stevens for the majority.

The appeals court "failed to give due deference to the district court's reasoned and reasonable sentencing decision," Stevens wrote.

Taken together, the two Monday decision create a new, tougher standard for appeals courts to overturn judges' sentencing decisions. Now, the appeals court must find that a particular sentence is unreasonable and that the judge abused his or her discretion in evaluating the factors that led to that sentence.

"The cases are the clearest and strongest rulings to date that federal trial judges can exercise their discretion to take their sentencing responsibilities seriously again," said Carmen Hernandez, president of the National Association of Criminal Defense lawyers (NACDL). "There is no doubt left that an inappropriate guidelines calculation is open to challenge -- individually, as imposed in a particular case, and categorically, where the Commission has not followed Congress' command that a sentence be 'sufficient, but not greater than necessary.'"

"At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, executive director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses."

"This decision makes it clear that federal judges have a right to vote their conscience and ignore sentencing guidelines that are racist, unfair or cruel," said Bill Piper, director of national affairs for the Drug Policy Alliance. "The ruling will reduce racial disparities in the criminal justice system and hopefully send a message to federal prosecutors that they should stop wasting resources on nonviolent, low-level crack cocaine offenders and focus on taking down organized crime syndicates instead."

On Tuesday, it was the Sentencing Commission's turn to take a whack at crack sentences. In November, the commission amended the crack sentencing guidelines to reduce average sentences from 10 years and one month to eight years and 10 months, but a key question for activists, reformers, and prisoners and their families was whether the change in the guidelines would be retroactive. On Tuesday, the commission announced they would be.

"Retroactivity of the crack cocaine amendment will become effective on March 3, 2008," the commission said. "Not every crack cocaine offender will be eligible for a lower sentence under the decision. A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission's direction to consider whether lowering the offender's sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense."

"At its core, this question is one of fairness," said one commission member, Judge William K. Sessions III of the United States District Court in Vermont. "This is an historic day. This system of justice is, and must always be, colorblind."

With retroactivity, some 19,500 currently imprisoned crack offenders will be able to apply for sentence reductions. According to the commission, eligible prisoners can expect an average sentence reduction of 17%, and some 3,800 prisoners will be eligible for but not assured of release by the end of 2008. But, the commission emphasized, reductions will ultimately be up to sentencing judges, who will have wide discretion in deciding who will be granted leniency.

Senator Edward Kennedy (D-MA), chairman of the Health, Education, Labor and Pensions Committee, said he was pleased with the commission's action. "Nearly 20,000 nonviolent, low-level drug offenders will be eligible for a reduction in the excessive prison terms they received in the past because of the unacceptable disparity in the sentencing guidelines between crack cocaine and powder cocaine offenses," Kennedy said. "Those who break the law deserve to be punished, but our system says that punishment must be proportionate and fair. The current sentencing disparity between crack and powder cocaine is neither."

"The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced," said Julie Stewart, president and founder of Families Against Mandatory Minimums. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more -- mothers, fathers, daughters and sons -- who anxiously wait for them to return home," said Stewart.

But while both the Supreme Court and the Sentencing Commission have acted to reduce the harsh and disparate sentences meted out to crack offenders, congressionally-imposed mandatory minimum sentences for such offenses mean that these actions will only have a marginal impact on the length of sentences and the federal prison population. Only Congress can adjust those mandatory minimum sentences.

As one commission member, Judge Ruben Castillo of the US District Court for the Northern District of Illinois, noted, the commission has recommended since 1995 that Congress act to redress the sentencing disparity. "No one has come before us to justify the 100-to-1 ratio," Judge Castillo said, referring to the provision of federal law that imposes the same 10-year minimum sentence for possessing 50 grams of crack and for possessing 5,000 grams of powder cocaine.

Four bills have been introduced in Congress to reduce the crack/powder cocaine disparity -- two by Democrats and two by Republicans. Two of the bills, introduced by Republican Senators Jeff Sessions from Alabama and Orrin Hatch from Utah, reduce the disparity but do not eliminate it. The third bill, introduced by Democratic Senator Joe Biden from Delaware, would completely eliminate the disparity. The Senate is expected to have hearings on the legislation in February. Democratic Representative Charles Rangel from New York has introduced the only bill on the House side that would eliminate the disparity by equalizing the sentences for crack and powder cocaine at the current level of powder. The Senate is set to have hearings on the issue early next year. No hearings have been scheduled in the House, and supporters of eliminating the disparity say House Democrats are ignoring the issue.

"The biggest obstacle to eliminating the racist crack/powder disparity is not the Bush Administration or law enforcement, it's the House Democratic leadership," said Piper, who noted that House Democratic leaders had reportedly barred committees from dealing with the issue. "While the Supreme Court, the Sentencing Commission and Senate Democrats and Republicans push forward with reform, House Democrats won't even have hearings on the issue. Their silence on this issue is sending a signal to communities across the country that they don't care about reducing racial disparities."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Canada: Federal Government Introduces Anti-Drug Legislation

Canada's Conservative federal government Tuesday introduced legislation that would create mandatory prison sentences for drug trafficking and drug producing offenses, including marijuana cultivation. The move marks a firm embrace of US-style drug war policies by the government of Prime Minister Steven Harper and comes as part of a larger "tough on crime" legislative package.

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

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

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

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

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

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

The proposed legislation also doubles the maximum sentences for marijuana growing or trafficking offenses from seven to 14 years.

The Harper government's legislation is a direct attack on Canada's cannabis culture, the most-friendly in the West, according to United Nations usage statistics. Look for a battle royal over this proposed step backward, and look for a Drug War Chronicle feature article on the coming battle next week.

Sentencing Reform: Massachusetts Bar Association Forms Drug Policy Task Force

The Massachusetts Bar Association (MBA) will form a drug policy task force, MBA President David White, Jr. announced last week. The task force will examine current drug policy and consider reforms, White said.

"We look to build a coalition from a broad spectrum of the Massachusetts health care, business and law enforcement communities. The coalition will take a hard look at the difficult questions of drug addiction and punishment of drug-related crimes," said White. "This is one part of our effort to improve sentencing in Massachusetts. Reforms of the current sentencing system will reduce crime, rebuild families and communities and save money," he added.

White's announcement came as a two-hour symposium on sentencing at the Statehouse Great Hall came to an end. During that symposium, panels of legislators, advocates, and attorneys suggested that the Bay State could see meaningful sentencing reform for the first time in years.

"I'm more optimistic than ever that we can have a useful discussion," said panelist state Sen. Robert Creedon Jr., Senate chairman of the Joint Committee on the Judiciary.

Mandatory minimum sentencing came under attack from several panelists, including at least one law enforcement official. Suffolk County Sheriff Andrea Cabral said mandatory minimums make treating inmates with drug problems more difficult and constitute obstacles to rehabilitation.

"The sheriffs, we are on the forefront of reentry programs, but we are stymied by mandatory minimums that don't allow us to classify people for acceptance into some of our programs," Cabral said.

Other panelists at the symposium included Northeastern University criminal justice professor James Alan Fox, Families Against Mandatory Minimums vice president and general counsel Mary Price, Washington state Rep. Roger Goodman (who leads the pioneering King County Bar Association Drug Policy Project), and several ranking Massachusetts elected officials.

White was named head of the MBA earlier this year. He has said that sentencing reform is one of his top priorities.

Feature: New, Less Severe Federal Crack Cocaine Sentencing Guidelines Go Into Effect, But Will They Be Retroactive?

Since Congress failed to act by Thursday to stop them, new, less severe federal sentencing guidelines for crack cocaine offenses promulgated by the US Sentencing Commission are now in effect. That means some 4,000 federal crack defendants each year can now count on marginally shorter sentences. For those serving the longest sentences that could mean years off.

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DEA crack cocaine photo
"We're very encouraged about this reform," said Marc Mauer, executive director of the Sentencing Project. "What the Sentencing Commission is doing is terrific and long overdue."

Under federal drug laws adopted by Congress in the mid-1980s, crack offenders are treated much more severely than powder cocaine offenders. Selling five grams of crack carries a mandatory minimum five-year prison sentence, while it takes 500 grams of powder cocaine to merit the same treatment.

The Sentencing Commission, whose job it is to set federal sentencing guidelines, responded to the mandatory minimums by adjusting the guidelines to incorporate them, resulting in guideline sentences that were above the mandatory minimums. The Commission also tried, in 1995, to reduce crack cocaine sentences to match those for powder cocaine, a move that prompted Congress to reverse the Commission's recommendation for the first time in its history. Now, in frustration with congressional failure to deal with the rising clamor over the inequities of the federal cocaine laws, the commission has amended the guidelines to lower the base offense levels for crack convictions.

The differences this time are marginal, but will still make a difference for those facing federal crack time. For example, instead of a sentencing range of 12 to 15 years for a certain drug quantity, defendants will face 10 to 12 years.

But the Sentencing Commission has not yet decided whether to make those changes retroactive, a move that, according to a Sentencing Commission impact analysis published in October, could bring relief to nearly 20,000 crack defendants currently behind federal prison bars -- about 85% of them black. It has the authority to do so; the question is whether it has the political will. The commission recently extended the period for public comment on the retroactivity issue from October 1 to November 1, and has scheduled a November 13 public hearing.

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prison dorm
The response has been intense, with the commission reporting that more than a thousand comments have been received -- most of them favoring retroactivity. That is at least in part because groups like Families Against Mandatory Minimums (FAMM) have launched a campaign to support the commission's long-held position that the racial disparity in cocaine sentences undermines the objectives of the country's sentencing laws.

It's not just FAMM. The American Bar Association, the American Civil Liberties Union, the Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, and numerous other groups have weighed in in support of retroactivity.

"Retroactivity is huge," said Nora Callahan, executive director of the November Coalition, an anti-prohibitionist group that concentrates on drug war prisoners. "If it isn't retroactive, it isn't justice," she said.

"The commission has for years acknowledged the adverse impacts of the current sentencing structure, and that hasn't gone unnoticed," Callahan continued. "The system lacks transparency, consistency, and fairness. That's not the commission's fault, but it is the commission's responsibility to address these issues. Reducing the racial disparities resulting from the crack laws cannot be accomplished without retroactivity. If there is no relief, that will only breed more despair and disrespect for the law," she said.

"I'm encouraged about retroactivity because there have been thousands of comments sent to the commission supporting it," said Mauer. "The commission has both a moral and a practical reason to support retroactivity. In terms of equity issues, there is a strong argument for retroactivity there. The commission has been on record since 1995 recommending reform of the crack penalties, and it seems to us that anyone sentenced since then should certainly be eligible to receive these reductions. If the commission supports retroactivity, it would be entirely consistent with what it has been recommending for years."

The Sentencing Commission's crack sentencing guideline amendment that went into effect this week and its pending decision on retroactivity come as the federal crack laws are under attack from all sides. The Supreme Court is considering them in the recently heard Kimbrough case, and at least three bills to address the crack-powder sentencing disparity are pending in Congress.

"There is more momentum now than at any time since the laws were established two decades ago," said Mauer. "It is that overdue recognition that the laws don't make sense, they're ineffective, and they are having a terrible racial impact. It's very encouraging to see this critique of the crack laws coming from all these different directions. We don't know how it will all play out, but there is a growing consensus that some reform will take place."

Hopefully it will include those already imprisoned under the draconian federal crack laws, some of whom have been behind bars since 1992. If not, the bulging federal prison system could see ominous rumbling like it hasn't seen for a decade -- the last time crack prisoners got their hopes up, only to see them dashed.

Marijuana: Florida Bill Would Toughen Penalties for Growing

Florida Attorney General Bill McCollum (R), an inveterate drug warrior dating back to his days in the US Congress, and two hard-line state legislators have unveiled a bill for the 2008 state session that attempts to crack down on the Sunshine State's flourishing indoor marijuana growing industry. The bill, which is not yet available on the Florida legislature's web site, would dramatically decrease the number of growing plants needed to prosecute someone as a drug trafficker, a first-degree felony with a mandatory minimum three-year prison sentence.

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McCollum press conference
Under current Florida law, growers can be charged as traffickers only if they grow more than 300 plants. Federal marijuana laws require 100 plants to trigger the equivalent offense. But under the "Marijuana Grow House Eradication Act," it would take only 25 plants to trigger a trafficking charge.

But there is more nastiness embedded in the measure. It would also create new penalties for those who own a house for the purpose of growing marijuana and those who live in the house or take care of the grow op. It would also ratchet up penalties for people who have both kids and a grow op, and ratchet them up even higher if the kids are three or under.

The bill is a response to an apparent explosion in marijuana grows in Florida. According to McCollum's press release announcing the measure, indoor grow ops were detected in 41 of Florida's 67 counties. The number of indoor grows busted in Florida ranks it second only to California, the release said.

The bill will not be heard until next spring's legislative session, but that didn't stop McCollum and his legislative and law enforcement allies from getting the ball rolling earlier this month. "As Florida's Attorney General, my priority is protecting our children and our communities from the devastation of illegal drugs," said McCollum. "This legislation targets those who grow marijuana for profit."

"Every time law enforcement can detect a grow house and arrest those involved with it, less crime will be on our streets," said cosponsor Senator Steve Oelrich (R-Gainesville), adding that the main purpose of this legislation is eliminating the spread of illegal drugs in Florida. "This legislation will provide law enforcement with critical tools to get these narcotics out of our kids' hands and put drug traffickers behind bars."

"In Florida, those who use grow houses to traffic drugs belong in prison," added Representative Nick Thompson (R-Fort Myers). "Under this legislation we are clearly telling drug dealers, 'if you grow, you go!'"

"Whether grown outdoors or in a garage, marijuana today is extremely potent and dangerous and the cultivation of this illicit drug will not be tolerated by DEA," chimed in Mark Trouville, Special Agent in Charge of the DEA Miami Field Division.

With some months until the bill is actually considered, saner heads will have time to craft a response. It remains to be seen if they will emerge to do so.

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