Mandatory Minimums

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The justice system in America is not color blind, study shows

Location: 
United States
Publication/Source: 
Pensacola News Journal (FL)
URL: 
http://www.pensacolanewsjournal.com/apps/pbcs.dll/article?AID=/20070802/NEWS01/708020329/1006

I'm as angry as I've been in a long time over this one...

This one has me as angry as I've been in a long time. Tampa Bay, Florida, area resident Mark O'Hara served two years of a 25-year mandatory minimum sentence for 58 Vicodin pills. (Vicodin is an opiate pain reliever.) Sound like an extreme sentence for such a small amount, even if it was trafficking as the charges read? But there's more. O'Hara had a prescription for the pills. He's a pain patient. His doctor confirmed that he had prescribed the Vicodin to O'Hara and that he had been treating O'Hara for years. But prosecutors moved against him, and -- astonishingly -- argued to the judge that the jury shouldn't be informed that O'Hara had a prescription for the Vicodin, because there's no "prescription defense." And the judge -- doubly astonishingly -- actually bought it. Never mind the fact that the drug law O'Hara was charged with violating specifically exempts people who have a prescription. The appellate judges who threw out his conviction used words like "ridiculous" and "absurd" to describe it. Sickeningly, prosecutors have yet to say that O'Hara is off the hook and won't be taken to trial again. I think we need to organize on this one and press the system to do justice to the prosecutors and judge for the terrible atrocity they committed against Mark O'Hara. Knowingly imprisoning an innocent person is the functional equivalent of kidnapping. It should be treated as such. Prosecutors Mark Ober and Darrell Dirks should be in chains; their continued status as individuals holding power in the criminal justice system poses a threat to the safety of all Americans. The judge who enabled the kidnapping, Ronald Ficarrotta, may only be completely incompetent, but I'm not sure he should get that benefit of the doubt. Read more at Reason.
Location: 
Tampa, FL
United States

Maryland FAMM Gathering

Join FAMM at Allen Pond Park in Bowie, MD for a gathering to honor the Maryland legislators and volunteers who worked diligently on the Maryland sentencing reform bill (HB 992 and S. 624). There will be music and refreshments. Awards will be presented at noon. Invitied guests: Senator Lisa Gladden (District 41) Delegate Curt Anderson (District 43) All are welcome! Bring your family and friends for a fun day at the park. Look for FAMM signs as you enter the park. For directions, use Mapquest or call Bessie Morgan at (301) 386-3417.
Date: 
Sat, 07/07/2007 - 11:00am - 3:00pm
Location: 
3330 Northview Drive
Bowie, MD 20716
United States

Marc Mauer Testifies on Mandatory Minimum Sentencing at House

Friends: Marc Mauer, Executive Director of The Sentencing Project, testifies Tuesday, June 26, 2007 on the issue of Mandatory Minumum Sentencing before the House Judiciary Subcommitee on Crime, Terrorism and Homeland Security. Mauer's testimony focuses on the experience with the current generation of mandatory sentencing policies in the federal system, the vast majority of which have been applied to drug offenses, and the lessons we should learn from that in order to develop more effective public policy. The main themes he will address include: Mandatory sentencing policies have been largely based on false premises, and are particularly unwise in the federal system; - Mandatory penalties in the federal system have not proven to achieve their objectives; and -A variety of policy initiatives could be enacted that would result in more fair and effective sentencing, and would produce better public safety results. See http://sentencingproject.org/Admin%5CDocuments%5Cpublications%5Csl_testi... to view his testimony.
Location: 
Washington, DC
United States

Sentencing: Supreme Court to Decide Crack Sentencing Case

The US Supreme Court Monday agreed to hear the case of a Virginia man sentenced under the harsh federal crack cocaine laws. Coming after the high court has already agreed to hear two other cases related to federal sentencing, the decision will broaden its review of federal sentencing law by adding the notorious crack-powder cocaine sentencing disparity to it.

http://stopthedrugwar.com/files/supremecourt2.jpg
US Supreme Court
Under federal law, it takes five grams of crack or 500 grams of powder cocaine to trigger a mandatory minimum five-year prison sentence. Similarly, 10 grams of crack or 1,000 grams of powder cocaine merit a 10-year mandatory minimum. The 100:1 disparity in the amounts of the drug needed to trigger the mandatory minimum sentences has been the subject of numerous critics, including federal judges.

The case selected Monday was that of a Virginia man, Derrick Kimbrough, who pleaded guilty to two counts of possessing and distributing more than 50 grams of crack. Federal sentencing guidelines called for a sentencing range of 19 to 22 years, but Federal District Court Judge Raymond Jackson in Richmond pronounced such a sentence "ridiculous" and "clearly inappropriate," and sentenced Kimbrough to the lowest sentence he could, the mandatory minimum of 15 years.

But the US 4th Circuit Court of Appeals rejected Jackson's reasoning and ordered resentencing. "A sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses," the three-judge appeals court panel said.

Other federal appeals courts disagree. Both the Third Circuit in Philadelphia and the District Colombia Circuit Court of Appeals have held that, as the Philadelphia appeals court put it, "a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the guidelines." Both courts noted that the Supreme Court itself had made the federal sentencing guidelines advisory rather than mandatory in its 2005 ruling in Booker v. United States.

The other two federal sentencing cases the court has agreed to hear are also related to the confusion in the courts in the wake of Booker. One case, Rita v. United States, raises the question of whether a sentence within the guidelines range should be presumed reasonable. The second case, Gall v. United States, involved an Iowa college student given a sentence beneath the guidelines in an ecstasy case. The trial judge sentenced Gall to three years probation rather than three years in prison, but the US 8th Circuit Court of Appeals in St. Louis ordered resentencing, finding that such an "extraordinary" departure from the guidelines required "extraordinary" justification.

The Supreme Court will likely decide Rita in a few weeks, and will hear arguments in Gall in October. Kimbrough will carry over into the next term. But in the next few months, the Supreme Court will make decisions that will potentially affect the freedom of thousands of federal drug defendants each year.

State may revise guidelines for drug sentences

Location: 
Providence, RI
United States
Publication/Source: 
The Providence Journal (RI)
URL: 
http://www.projo.com/news/content/mandatory_minimums_06-14-07_9H60LMB.34c74a9.html

Bush Seeks to Re-Impose Mandatory Minimums

Location: 
United States
Publication/Source: 
CBS News
URL: 
http://www.cbsnews.com/stories/2007/06/13/politics/main2924206.shtml

Feature: Battle Royal Looms as Canadian Government Set to Unveil Tough Anti-Drug Strategy

The Conservative government of Canadian Prime Minister Steven Harper is set to reveal what is expected to be a US-style approach to drug policy any day now. While action in parliament is unlikely until after the looming summer recess, battle lines are already being drawn in what promises to be a bitter fight.

http://stopthedrugwar.org/files/savecanada.jpg
pro-Insite demonstrators (photo courtesy timetodeliver.org)
Although the government has yet to reveal particulars, it is widely assumed that the new drug strategy will take a "tough on crime" approach to drugs, cracking down on grow-ops and drug sellers with harsher penalties, providing more money for law enforcement, and moving away from harm reduction approaches such as Vancouver's Insite safe injection site.

"There will be a heavier emphasis on enforcement, with some additional money for treatment," said Eugene Oscapella, head of the Canadian Drug Policy Foundation. "The other thing is they want mandatory minimum sentences for some drug offenses, especially serious trafficking offenses," he told Drug War Chronicle.

An early hint of the Harper government's drug policy came in March, when Conservatives allocated an extra $70 million over two years for enforcement, treatment, and prevention, but no mention was made of harm reduction programs. In Canada, these also include needle exchanges and the distribution of sterile crack pipes.

Of the additional funding, treatment programs will get nearly half, law enforcement about a third, and the rest will go into "just say no" style youth prevention program. The new drug strategy is also expected to endorse the use of drug courts, where drug offenders can be ordered into treatment programs instead of jail or prison.

The Canadian federal government currently spends about $350 million a year on anti-drug efforts, the vast majority of which goes to law enforcement, with lesser amounts for treatment and prevention, and a pittance for harm reduction. Canadian drug policy is guided by a 20-year-old national drug strategy that has been widely criticized for lacking clear direction, targets, and measurable results.

What the Harper government is proposing is not the answer, says a growing chorus of critics. The Liberal Party was quick off the mark to attack the yet-to-be-seen Conservative drug strategy.

"Stephen Harper's government is expected to announce next week new measures that will retreat from harm reduction measures that help Canadians, such as the safe injection site in Vancouver," said Liberal Health critic Bonnie Brown in a press release last week. "They are trying to do this under the guise of cracking down on illicit drug trafficking and prevention -- even though all the research suggests that an ideologically-motivated war on drugs is ineffective, while programs such as the safe injection site are producing positive results."

A series of reports -- including the Canadian Medical Association Journal and the BC Centre for Excellence in HIV/AIDS -- have concluded that the site has had a positive effect on Vancouver's Downtown Eastside, and has not increased crime or addiction rates, or threatened public health and safety.

"Rather than focusing its efforts where they are needed most -- such as funding the safe injection site and other programs vital to a larger harm reduction strategy in Canada -- this government is putting its right-wing agenda ahead of scientific evidence, and at a tremendous cost to those affected by addiction," said Brown.

Brown's charge resonates with a number of Canadian researchers. "The science is there. What we're seeing here is political interference," said Dr. Thomas Kerr with the BC Centre for Excellence in HIV/AIDS, who has led several research studies on Insite. "I think it's a sad day for drug policy in Canada given that the Conservative government is now advocating a US-style approach to drug policy that's been shown to fail," he told reporters in Vancouver last week.

Kerr isn't the only one complaining. Several prominent researchers from across Canada have written an open letter to Health Canada criticizing it for calling for new research on Insite despite years of research showing positive incomes. The call for proposals from Health Canada ensures that the research will be superficial and inadequately funded, they said. They also took issue with a condition that researchers not be allowed to talk about their findings for six months after reports are submitted.

"Clearly what that does is to muffle people who might have something to say until after the curtain has dropped on this piece of political theatre," Benedikt Fischer, a director of the BC Centre for Addictions Research at the University of Victoria, said in an interview last Friday. "Overall, we get the feeling that what this is about is there's an attempt to instrumentalize science in a fairly cheap way for politics."

"The Conservatives don't like InSite," said Oscapella. "This is not an issue of science, but of ideology and playing to the peanut gallery. They have tried to misstate its purpose, what it has achieved, and the position of other countries. This is a propaganda exercise by the government to further its electoral objectives," he said.

"But the Liberals are no angels, either," he pointed out. "They had three opportunities to reform the cannabis laws and they didn't do that. I give them some credit for the medical marijuana regulations, but at the same time, the process is now incredibly cumbersome. They backed away from decriminalization. In effect, they backed a tough drug war, but with softer rhetoric."

"The Liberals are known to oppose from the left and govern from the right," said Dana Larsen, a New Democratic Party (NDP) candidate for a West Vancouver riding and head of the party's anti-prohibitionist wing, eNDProhibition. "Now they're in opposition, and they will say that Harper's drug war is wrong. But they passed our current drug law in 1996 despite testimony from nearly everyone it was bad law, and marijuana arrests went up every year the Liberals were in power."

But while the national NDP supports harm reduction and legalizing marijuana as part of its platform, its national leadership has not embraced the issue, Larsen said. "The party is good on policy, and the party spokesperson on drug issues, Libby Davies, is great, but we haven't succeeded yet in getting the party to make ending the drug war a priority."

Davies was traveling on personal business outside the country and unavailable for comment this week.

Canada will have all summer to brood over the coming battles over drugs and crime, but with the Harper government a minority government, it will have to reach out to the Liberals, the NDP, or the Bloc Quebecois to pass anything. None of the opposition parties seems likely to support a "tough on drugs" package like that now envisioned by the Conservatives.

"They don't have the votes to pass this by themselves," said Oscapella. "The fear is what happens if they get reelected with a majority. Then they could walk all over everybody."

Feature: US Sentencing Commission Again Calls on Congress to Fix Crack-Powder Cocaine Sentencing Disparity

http://stopthedrugwar.org/files/lillieblevins.jpg
the late Lillie Blevins, served life sentence for a crack cocaine ''conspiracy'' after being convicted on the word of a snitch who received probation in return (courtesy november.org)
In its annual report to Congress, the US Sentencing Commission has once again called on legislators to reduce the tough penalties for federal crack cocaine offenses. The commission's previous calls to fix the 100:1 disparity between the amount of crack and the amount of powder cocaine necessary to trigger mandatory minimum sentences have either been ignored or slapped down by previous Congresses. Whether the new Democratic majority in Congress will allow reform to be accomplished this year remains to be seen.

Under federal law in effect since 1987, someone charged with possessing five grams of crack faces a mandatory minimum five-year sentence. By contrast, it takes 500 grams of powder cocaine -- one hundred times as much -- to trigger the same sentence.

While the Sentencing Commission cannot itself enact changes in the crack cocaine law -- that's up to Congress -- it has already signaled its impatience with congressional inaction. A little more than two weeks ago, the commission adjusted federal sentencing guidelines for crack cocaine offenses so that crack offenders will serve on average about a year less than under the old guidelines. That move alone will provide small relief to thousands of federal crack prisoners.

But the real problem is the harsh mandatory minimums for federal crack offenses. The Sentencing Commission found that:

  1. The current quantity-based penalties overstate the relative harmfulness of crack cocaine compared to powder cocaine.
  2. The current quantity-based penalties sweep too broadly and apply most often to lower level offenders.
  3. The current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality.
  4. The current severity of crack cocaine penalties mostly impacts minorities.

"Based on these findings," the report read, "the Commission maintains its consistently held position that the 100-to-1 drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act." While noting that setting appropriate thresholds is "a difficult and imprecise undertaking that ultimately is a policy decision," the Commission nevertheless "strongly and unanimously" urged Congress to adopt the following recommendations:

  1. Increase the five-year and ten-year statutory mandatory minimum threshold quantities for crack cocaine offenses to focus the penalties more closely on serious and major traffickers as described generally in the legislative history of the 1986 Act.
  2. Repeal the mandatory minimum penalty provision for simple possession of crack cocaine under 21 U.S.C. § 844.
  3. Reject addressing the 100-to-1 drug quantity ratio by decreasing the five-year and ten-year statutory mandatory minimum threshold quantities for powder cocaine offenses, as there is no evidence to justify such an increase in quantity-based penalties for powder cocaine offenses (e.g., don't increase powder cocaine sentences).

http://stopthedrugwar.org/files/ussc-chart.jpg
graph from report, crack cocaine amounts nearly invisible next to the powder amounts
Groups that have long advocated for reform of the crack-powder cocaine sentencing disparity and the removal of mandatory minimum sentences reacted with pleasure mixed with a hint of impatience. They have been waiting a long time for action on this front.

"The prisoners, children and families torn apart by these unjustifiably harsh penalties are watching closely and will welcome crack sentencing reforms that restore some justice to crack penalties," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM). "Only Congress can change our harsh mandatory minimum crack laws. Lawmakers should not squander the important opportunity presented by the most recent set of findings and recommendations by the Sentencing Commission. The time is ripe for reform, especially given the bipartisan support for crack sentencing reform that has emerged in recent years."

"The current sentencing structure has had a disproportionate and unfair impact on African-American and low income communities," said Caroline Fredrickson, director of the ACLU's Washington Legislative Office, "and we're encouraged that the US Sentencing Commission has once again acknowledged this fact. But 2007 marks the fourth time in 20 years that the commission has issued such a report, and Congress has yet to address the problem. Years of medical and legal research have shown no appreciable difference between crack and powder cocaine, and no justification for allowing the vast sentencing gap between them to stand. We urge Congress to put aside politics and act now to fix this discriminatory federal drug sentencing policy."

But it is not reform advocates but members of Congress who will or will not enact most reforms. While in the past, Congress has rejected such recommendations from the Commission, there are some indications support for reforms is growing.

"It's past time to reduce the disparity between crack and powder cocaine sentences actually," Republican Sen. Jeff Sessions told National Public Radio, "because the penalties on crack cocaine are extraordinarily heavy -- too heavy to be justified as public policy." His colleagues should listen to the Commission, Sessions added. Sessions has already introduced a bill that would reduce the disparity to 20:1.

Another key player, Sen. Patrick Leahy (D-Vermont), head of the Senate Judiciary Committee, told the legal publication the Daily Journal the report's findings were "an important first step" in correcting the sentencing disparity. "For far too long, the federal crack/powder sentencing laws have created an injustice in our nation," he said. Leahy said he hopes that federal prosecutors will focus more on drug kingpins.

Sen. Joe Biden (D-Delaware), who has announced his candidacy for the 2008 Democratic presidential nomination, has also weighed in. "This 100:1 disparity is unjust, unfair, and the time has long past for it to be undone," Biden said in a Tuesday press release. "The current sentencing disparity between the two forms of cocaine is based on false notions and old logic," said Sen. Biden. "Congress has ignored this issue for too long. I intend to introduce legislation to remedy the disparity and refocus the federal cocaine sentencing laws and federal resources on major drug kingpins, as was the intent of the 1986 law. I look forward to working with my colleagues -- Republicans and Democrats -- and urge them to support righting this wrong."

http://stopthedrugwar.org/files/crackcocaine.jpg
DEA crack cocaine photo
"There is indeed growing support for reducing the disparities," said Bill Piper, head of national affairs for the Drug Policy Alliance. "Biden, Sessions, and Sen. Hatch [R-Utah] are all working on bills, and so is Charley Rangel [D-New York] in the House," he told Drug War Chronicle. "There is growing support in the judiciary committees for doing something."

But, Piper warned, the devil is in the details. "They agree that something needs to be done, but I'm not sure they will reach agreement on what needs to be done. Then it would have to pass floor votes, and then we have to wonder if Bush would veto it," he said. "But when you have the Sentencing Commission and leading Republicans signing off on something, the Democrats should be emboldened. That shows this is a bipartisan effort."

Even the Justice Department is wavering. While Piper noted that the department has long taken the position that there was no problem, department spokesman Bryan Sierra told the Daily Journal this week that the agency is "willing to discuss the disparity in the ratio for sentencing between crack and powder cocaine," but he added that the department believes that "it should be done in the broader context of sentencing reform."

For the fourth time since 1995, the Sentencing Commission has urged Congress to act to reduce the disparity and bring greater fairness to sentencing. Now it is in Congress' hands.

DPA Press Release: US Sentencing Commission urges Congress to Reduce Crack/Powder Cocaine Sentencing Disparity

For Immediate Release: May 17, 2007 Contact: Jasmine L. Tyler at 202-294-8292 US Sentencing Commission urges Congress to Reduce Crack/Powder Cocaine Sentencing Disparity Experts to Brief Congress on Current Cocaine Policy and the Need for Reform Washington, DC—Criminal justice experts will hold briefings on the crack/powder cocaine sentencing disparity for Congressional staffers on Monday, May 21. They will discuss the United States Sentencing Commission’s (USSC) May 2007 Guideline Amendment and Report to Congress. Joining the panel will be Hilary Shelton from the NAACP, Pat Nolan from Prison Fellowship, and Lisa Rich from the USSC. These briefings will be moderated by Jessalyn McCurdy of the ACLU and Marc Mauer of The Sentencing Project. The briefing is co-sponsored by the Drug Policy Alliance. ********************************************************************* WHAT: Reforming Crack and Powder Cocaine Sentencing Briefing for Congressional staffers WHO: Members of Congress and staff, media, policy advocates, stakeholders, treatment providers, faith leaders When: Monday, May 21 House Briefing: 9 a.m. - B340 Rayburn House Office Building Senate Briefing: 2 p.m. - 485 Russell Senate Office Building ********************************************************************* Twenty years ago when the crack cocaine sentencing laws were first passed by Congress, the United States faced a panic about the alleged “crack epidemic” and operated under the impression that crack had inherent properties that made it infinitely more dangerous than powder cocaine. These reports, which served as the basis for the huge disparity, have since been found to be fundamentally flawed, rendering the 100-to-1 disparity arbitrary and capricious. Further, these laws have proven ineffective in reducing drug use or distribution and have instead exacerbated racial disparity and injustices in our criminal justice system. The USSC has taken the lead on eliminating the crack/powder sentencing disparity by amending the federal sentencing guidelines to lessen the punishment range for crack cocaine cases by approximately one to two years. The Commission also urged Congress to reform federal mandatory minimum sentences to reduce the statutory disparity. Currently, there is growing bipartisan support for reforming the crack/powder disparity. There are two house bills pending and a similar one before the Senate. # # #
Location: 
Washington, DC
United States

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