Mandatory Minimums

RSS Feed for this category

North Carolina Opium Law Snares Small Prescription Pain Pill Holders

North Carolina's drug laws, which severely punish people who traffic in opiates, are yielding harsh prison sentences for people possessing or trafficking small quantities of prescription pain pills. That is leading to renewed debate in the Tar Heel State about whether the laws are too harsh.

This pill bottle fulls of opiate pain pills could get you 20 years or more in North Carolina. (wikimedia.org)
Under North Carolina's opium law, which was designed to attack heroin trafficking, anyone caught with more than four grams of opium, heroin, or an opium derivative faces a mandatory minimum prison sentence of between six and seven years. But as the Wilmington Star News reported, the four-gram limit means people caught with as few as four Lorcet tablets, five Percocets, or six Vicodin are subject to those draconian punishments.

The sentences increase with the quantities of drugs in question. Having between a half ounce and an ounce of prescription pain pills can earn a seven-to-10-year sentence, while having more than an ounce garners between 19 and 23 years. A single pill bottle full of pain pills could be enough for that latter sentence.

The penalties for opiates are much more severe than for other drugs under the North Carolina law. Trafficking an ounce to 199 grams of amphetamines has a two-year mandatory minimum, while the same quantity of cocaine has a three-year mandatory minimum. When it comes to marijuana, to get the same mandatory minimum as five or six pain pills, one would have to be caught with a ton or more of pot.

While some relatives of pain pill overdose victims have lobbied for harsher penalties, even some North Carolina prosecutors say the punishments are already too extreme.

"You can literally end your life in prison on a handful of pills," said Chris Thomas, an assistant district attorney in Brunswick County. "When the legislature enacted the trafficking law back when they did, I don't think they ever intended it to apply to prescription drugs. That was when heroin was a big problem," he told the Star News. "But it's one of those things that's on the books, and it's a tool that we're going to utilize."

New Hanover County Assistant District Attorney Janet Coleman, who handles drug cases, said many people she has prosecuted for pain pills had no prior criminal record. "None, zero, not even a speeding ticket," she said. "They are otherwise law-abiding citizens who end up in this nightmare."

[Editor's Note: Why prosecute people with those laws then? Prosecutors have the discretion to not do so.]

The issue has gained the attention of state lawmakers, but has so far gone nowhere. A bill in the 2008 legislature would have allowed some some convicted traffickers to get out after serving half their sentence if they lacked a violent criminal history and did not have a firearm when the offense was committed, in addition to meeting other criteria, but it died in committee.

NC
United States

New Canadian Drug Reform Coalition Emerges [FEATURE]

Even as Canada's Conservative federal government attempts to drag the country back into the last century with its drug and crime policies, a new drug reform umbrella group has emerged to fight for smart, sensible, evidence-based alternatives. The Canadian Drug Policy Coalition (CDPC) unveiled itself and its new web site late last month.

http://stopthedrugwar.org/files/cdpc-logo.jpg
Enlisting many of Canada's leading experts in drug policy, the coalition is headed by Donald Macpherson, the former head of Vancouver's ground-breaking Four Pillars approach to the drug problem. It also includes researchers, public health officials, front-line harm reduction and treatment providers, people who use drugs, HIV/AIDS service organizations, youth organizations, parents, and community members, all of whom are concerned with the health and safety outcomes of Canadian drug strategies. Its emergence couldn't be more timely. (See a complete list of member organizations here.)

Tuesday, the House of Commons approved a draconian omnibus anti-crime bill, C-10, that would, among other things, create mandatory minimum sentences for growing as few as six marijuana plants and for manufacturing small amounts of hashish or hash oil. The Tories were able to shove the bill through despite broad opposition from across Canada after winning an outright parliamentary majority in the last elections.

Reformers say they will be unable to stop the bill's passage, although they will likely challenge it in the courts, which have proven friendlier to innovative drug policy reforms. The Supreme Court of Canada earlier this year blocked the federal government from shutting down Insite, Vancouver's safe injection site. It is in this contested terrain of federal drug policy, as well at the provincial level, that the coalition seeks to intervene.

"We're letting the world know we're here and we're a coalition that wants to grow," said Macpherson. "We’re working toward trying to change the paradigm and the direction of the federal government and introducing a public health and human rights perspective on drug policy in Canada."

The coalition went public last week, marking its coming out with a press conference in Vancouver, a Macpherson op-ed in the Vancouver Sun, and joining with the British Columbia Health Officers' Council (HOC) in releasing an HOC report, Public Health Perspectives for Regulating Psychoactive Substances, which describes how public health oriented regulation of alcohol, tobacco, prescription and illegal substances can better reduce the harms that result both from substance use and substance regulation than current approaches.

"This paper highlights the large number of needless and preventable deaths, hospitalizations and human suffering consequent to our current approaches," said Dr. Richard Mathias of the HOC. "The Health Officers’ Council is inviting feedback on its ideas and requesting that organizations and individuals join with us in a call for immediate changes to put the public’s health first."

"The story about the emperor's new clothes is replayed time and again by governments unwilling to own up to realities," said Robert Holmes, head of the British Columbia Civil Liberties Association, as he saluted the report. "Public health professionals in B.C. are right to point out that our current chaotic and contradictory drug laws and policies need to be reviewed against scientific evidence of what works to reduce consumption, social harms, and costs," he said.

"People routinely get put in jail for conduct related to active drug addictions, but the criminal justice system is hardly a surrogate for medical care. It is plain that we have inadequate treatment and detox available for people with addictions to help them cope, recover or quit," noted Holmes. "By making cannabis taboo, our society both prohibits and makes more alluring its use. It is, of course, widely used. But instead of recognizing that and taxing it like tobacco and liquor products, with the tax revenue going to the cost of education and care, we leave the massive profits of this industry to organized crime and leave taxpayers with the bill for police efforts to contain it."

"This report is important because it's not about which drugs are legal and which are not," Macpherson said. "We need to look at all drugs through a public health lens. We're trying to get beyond 'good drug, bad drug' and move toward finding a regulatory system that minimizes the harm and maximizes the benefits of these substances."

The provincial health officers' report is also noteworthy because it actually addresses the benefits of drug use, Macpherson said.

"It takes courageous public health doctors to dare to talk about the benefits of drug use," he said. "We all know that drugs can be beneficial from our use of alcohol to relax or become more social or our use of pharmaceuticals to kill pain, but you're not allowed to talk about that in the drug policy arena. It's all about reducing harm, but we need to acknowledge that drug use has its benefits."

More broadly, the CDPC is working toward:

  • A health, social and human rights approach to substance use;
  • The important role harm reduction approaches play;
  • Removing the stigma of criminalization for people who use drugs;
  • Moving beyond the current approach to drug prohibition;
  • A national dialogue on drug policy for Canada.

"We'll advocate for a comprehensive public health and human rights approach," said Macpherson. "It's not just about health, but also looks at social and human rights issues. And it's not just about ending the drug war, but to start talking about alternatives to the failed war on drugs."

The CDPC sees itself as facilitating the dialog, Macpherson said. "A lot of change in drug policy requires political leadership, but politicians also need support in taking those courageous steps, so that when you bring people together to talk reasonably in an informed way and bring the evidence to bear, you can then move forward. They can see that despite their fears about safe injection sites or cannabis regulation, those are actually sound ways to go that make their communities safer in the long run than the way we're going now," he said. "We're trying to position ourselves as the organization than can help find the answers through our expertise and by looking at what's worked and what hasn't in other jurisdictions, and by convening people who care about these issues to look for solutions that actually work instead of the same old same old."

And despite Conservative domination at the federal level, there is still plenty that can be done, both in Ottawa and in the provinces, Macpherson said. "There is a lot that can be done around health and harm reduction because most of the health approaches emanate from provincial health ministries," he said. "Harm reduction can also be done locally by municipalities, for example, by making the criminalization of drug users a low priority for police."

While any decision to end Canada's drug war will have to come from Ottawa, Macpherson said, the provinces can still move forward themselves. "We can expand the number of safe injection sites and other harm reduction programs, and we can move toward a more comprehensive public health approach. They're doing that in some provinces," he said.

Given the obstinacy and recalcitrance of the government of Prime Minister Steven Harper, the CDPC certainly has its work cut out for it, but there couldn't be a group more suited for the task.

Vancouver, BC
Canada

Supreme Court Takes Up Crack "Pipeline" Sentencing Cases

The US Supreme Court announced Monday that it will decide whether a federal law designed to reduce the disparity between crack and powder cocaine sentences should be applied to those who were convicted, but not sentenced, before it came into effect.

The court granted certiori to two appellants, Edwin Dorsey and Corey Hill, both of whom were convicted of federal crack cocaine offenses before the 2010 Fair Sentencing Act went into effect, but not sentenced until after it was in effect. Lower courts split on whether the act should apply, but the US 7th Circuit Court of Appeals in Chicago held it should not.

The cases of people like Dorsey and Hill, whose cases were not complete when the law went into effect are known as "crack cases in the pipeline," or "pipeline" cases.

The Fair Sentencing Act reduced the disparity between the amount of crack cocaine and the amount of powder cocaine needed to trigger federal mandatory minimum sentences by increasing the amount of crack needed to trigger such sentences, and lessened the penalties for crack offenses specified by the federal sentencing guidelines system. Once a 100:1 ratio between weight of crack cocaine vs. powder cocaine, the disparity was reduced to 18:1. At the beginning of November, the reductions were made retroactive, allowing up to 12,400 prisoners to file motions seeking early release. But "pipeline" cases were caught in a lacunae.

The Supreme Court will hear the two cases together in oral argument. A decision in the cases is expected by June.

Washington, DC
United States

Federal Crack Cocaine Prisoners Start Coming Home [FEATURE]

Hundreds of federal crack cocaine prisoners began walking out prison Tuesday, the first beneficiaries of a US Sentencing Commission decision to apply retroactive sentencing reductions to people already serving time on federal crack charges. As many as 1,800 federal crack prisoners are eligible for immediate release and up to 12,000 crack prisoners will be eligible for sentence reductions that will shorten their stays behind bars.

The numbers of those released vary by region, but federal prosecutors and defenders said Tuesday they would be freed by the dozens in different cities across the land. The public defender for the Eastern District of Virginia expected 75 to be released this week, while his colleague in San Antonio estimated 15 or 20 and his colleague in St. Louis estimated 30 to 50. The federal prosecutor for the Northern District of West Virginia said 92 would walk free there this week.

At this point, there is some confusion over how many people will be released and how fast.

"We're not sure how many are getting out today," a Bureau of Prisons spokesperson told the Chronicle Tuesday. "This is the first day. We're reviewing files, checking for detainers, so some might not be released. And we don't have a date set yet for when we're releasing numbers."

The releases come after Congress passed the Fair Sentencing Act in August 2010, which shrank the much maligned disparity between mandatory minimum sentences for crack and powder cocaine from 100:1 to 18:1. After Congress acted, the Sentencing Commission then moved to make those changes retroactive, resulting in the early releases beginning this week.

"For the past 25 years, the 100:1 crack/powder disparity has spawned clouds of controversy and an aura of unfairness that has shrouded nearly every federal crack cocaine sentence that was handed down pursuant to that law. I say justice demands this result," said Ketanji Brown Jackson, vice chairwoman of the Sentencing Commission, after it decided on retroactivity in June.

Both the Fairness in Sentencing Act and the Sentencing Commission's decision to make it retroactive provoked ire from congressional conservatives. House Judiciary Committee Chairman Lamar Smith (R-TX), opposed both.

"This bill reduces the penalties for crack cocaine," Smith said during debate on the bill. "Why would we want to do that? We should not ignore the severity of crack addiction or ignore the differences between crack and powder cocaine trafficking. We should worry more about the victims than about the criminals."

But after a quarter century of skyrocketing federal prison populations driven almost entirely by harshly punitive drug laws like the crack statute, Smith's view no longer holds sway. That's in part due to years of efforts by reform advocates, who decried the evident racial disparities in the prosecution and sentencing of crack cases, as well as the Sentencing Commission itself, which for more than a decade has urged Congress to fix the law.

Despite the initial uncertainly, activists, newly freed prisoners, and family members greeted the event with elation. "Beginning today, thousands of individuals across the country will get another shot at justice," said Julie Stewart, director of Families Against Mandatory Minimums. "These people were forced to serve excessive sentences under a scheme Congress has admitted was fundamentally flawed, but, today, they can ask for long overdue relief."

"It's unbelievable. I'm ecstatic," said William Johnson, a Virginia man convicted of crack distribution conspiracy in 1997 and imprisoned ever since. The 39-year-old told CNN he only found out Monday he was going free the next day.

The joyous reunions taking place this week notwithstanding, the drug war juggernaut keeps on rolling, and there is much work remaining to be done. Not all prisoners who are eligible for sentence reductions are guaranteed to receive one, and retroactivity won't do anything to help people still beneath their mandatory minimum sentences. A bill with bipartisan support in Congress, H.R. 2316, the Fair Sentencing Clarification Act, would make Fair Sentencing Act changes to mandatory minimum sentences retroactive as well, so that crack offenders left behind by the act as is would gain its benefits.

And the Fair Sentencing Act itself, while an absolute advance from the 100:1 disparity embodied in the crack laws, still retains a scientifically unsupportable 18:1 disparity. For justice to obtain, legislation needs to advance that treats cocaine as cocaine, no matter the form it takes.

But even those sorts of reforms are reforms at the back end, after someone has already been investigated, arrested, prosecuted, and sentenced. Radical reform that will cut the air supply to the drug war carceral complex requires changes on the front end.

"We want sentencing reform; we'll take anything we can get," said Nora Callahan, director of the November Coalition, a drug reform group that focuses on federal drug prisoners. "But people have to start demanding that drug war policing tactics change, too. They could stop drug dealing when they see it and stop spending tax dollars on buy and bust operations. Those are front end solutions," she said.

"When the Sentencing Commission evaluated the sentencing schemes, they explained that 'the sentence begins at investigation,' exposing the police tactics that are the beginning of the sentencing process," Callahan continued. "Police control buy and busts and sting operations, and they determine how much drugs or cash they are going to talk some poor SOB into exchanging, or even simply discussing."

Some people imprisoned for too long under racially disparate US drug laws are walking free this week. Others are not. And as long as the drug war keeps rolling along, the federal prisons are going to keep filling up with its victims.

Washington, DC
United States

Canada Mandatory Minimum Crime Bill Set to Pass [FEATURE]

The Conservative government of Canadian Prime Minister Stephen Harper has been trying for years to pass a harsh drug crime bill that includes mandatory minimum sentences for growing as few as six marijuana plants. This year, with the Conservatives now holding an absolute majority in parliament, it looks like the Conservatives will get their wish..

Parliament Hill, Ottawa
"The bill will pass," said Eugene Oscapella, head of the Canadian Drug Policy Foundation, who testified against the bill in parliament last week and who was attacked by Conservatives for doing so. "The government has a clear majority, and under the parliamentary system, MPs will vote like trained seals. Even though I know Conservative MPs who disagree with this, if you spit in the face of the prime minister, you will be out of the caucus."

The Tories rolled out this year's version of their perennial drug bill last month as part of an omnibus anti-crime bill known as Bill C-10, the Safe Streets and Communities Act. Ironically, the government's "tough on crime" initiative came just weeks before Statistics Canada reported that the country's homicide rate had declined to levels not seen since 1966. Overall violent crime is down, too.

The omnibus bill runs to 110 pages and brings together nine separate previous proposals to strengthen police and prosecutorial powers aimed at child sex predators, violent offenders, drug traffickers, and "out of control" youthful offenders. In addition to Canada's first mandatory minimum sentences, the package also includes tougher pre-trial custody conditions, restrictions on the use of probation, and lengthier sentences for violent and youthful repeat offenders.

"Since coming into office, our government has accomplished a great deal when it comes to cracking down on crime and better protecting Canadians," said Justice Minister Rob Nicholson as he introduced the omnibus bill last month. "By moving quickly to reintroduce and pass the Safe Streets and Communities Act, we are fulfilling our promise to Canadians by taking action to protect families, stand up for victims and hold criminals accountable."

"Our government remains committed to fighting crime, protecting Canadians and holding offenders accountable," said Minister of Public Safety Vic Toews. "Canadians gave us a strong mandate to improve safety for Canadians where they live, work and raise their families."

Voters may have given the Tories a mandate at the polls, but it's not clear that it was Tory crime policies driving the vote. A Nanos poll earlier this summer had only 2% of respondents selecting "fighting crime" as their highest priority for the Harper government. Instead, respondents were much more concerned about the provision of health care (40%) and reducing the deficit (26%).

Canada's other major political parties, the Liberals and the New Democrats, both oppose the bill, as does a broad swath of civil society. The Canadian Bar Association and the Canadian HIV/AIDS Legal Network are among the groups opposing the bill, as are criminal defense attorneys, prisoners' advocates, and critics who point toward falling crime numbers and question whether the country can afford a massive expansion of its prison system.

The government has so far declined to specify projected costs of the bill or reveal its own projections about how much the prison population would increase under the bill.

"We believe the substance of this legislation both to be self-defeating and counterproductive, if the goal is to enhance public safety," vice-chair of the Canadian Bar Association's National Criminal Justice Section Eric Gottardi said last week. "It represents a profound shift in orientation from a system that emphasizes public safety, rehabilitation and reintegration to one that puts vengeance first."

"The Conservatives are completely divorced from the reality of what's going on," said NDP Deputy Leader Libby Davies (Vancouver East) during a 10-minute House of Commons speech attacking the bill. "They have branded themselves and wrapped themselves in a cloak of crime and punishment, and as a result they are blind to evidence, they are blind to the costs, they are blind to the fact that we have the lowest crime rate since 1973, they are blind to building safe and healthy communities, they are blind to the horrendous experience of the United States and its war on drugs regime that is now being slowly repealed -- including the repeal of mandatory minimum sentencing... because of its catastrophic failure on people and society overall. They are blind to the evidence here in Canada and they are blind to the real impacts of what these bills will have on the lives of people and on communities overall."

The Tories are "only interested in manipulating people, creating fear, division, and creating a 'them and us' scenario," Davies continued. "I believe from the bottom of my heart that this omnibus bill is offensive because it is politically motivated and will have enormous negative impacts."

It's not just progressives, or even Canadians, who are upset by the bill. Crime-fighting conservative Texans have come out against it, citing their own unhappy experience with "lock 'em up and throw away the key" policies. "You will spend billions and billions and billions on locking people up," said Judge John Creuzot of the Dallas County Court. "And there will come a point in time where the public says, 'Enough!' And you'll wind up letting them out."

Still, with the Conservatives holding a solid parliamentary majority, the bill's passage now appears to be all but a done deal. That doesn't mean the fight against it will go away, though -- not before it passes and not after it passes. The lawyers are already gearing up for that second phase of the struggle.

"They are trying to ram this through as quickly as possible, and I don't know what can be done to stop it," said Oscapella. "It will have to be done at the back end, by means of constitutional challenges under the Charter of Rights and Freedoms. But that will take years."

Canada

Why Mandatory Minimum Sentencing is Wrong and Bad

http://stopthedrugwar.com/files/scales-small.jpg
scales of justice tilted to one side
Via Doug Berman and the Sentencing Law and Policy blog:

A report and editorial in the New York Times this week detail some of the unfortunate consequences of mandatory minimum sentencing, a policy in which judges are severely constrained in what sentences they are required to mete out to offenders. The editorial, titled "An Invitation to Overreach," discusses how mandatory minimums undermine the judicial process:

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms. In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process -- doing what judges are supposed to do in open court, subject to review.
 

And mandatory minimums don't make sentences more even across different cases or for different types of people, an argument that is sometimes made. In fact they have made disparities worse, by transferring power from judges, who theoretically at least are neutral, to prosecutors, who effectively decide what the sentences will be because they determine what charges to bring:

These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime. But they have made the problem much worse. They have shifted the justice system’s attention away from deciding guilt or innocence. In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.
 

Other issues discussed by NYT including racial disparities in these laws' application, and their severe cost-ineffectiveness. Here's another reason to get rid of mandatory minimums: They are immoral and indecent.

Drug Policy Prospects on Capitol Hill This Year [FEATURE]

There are nearly two dozen pieces of drug policy-related legislation pending on Capitol Hill, but given a bitterly divided Congress intently focused on the economic crisis and bipartisan warfare in the run-up to the 2012 election, analysts and activists are glum about the prospects for passing reform bills and even gloomier about the prospects for blocking new prohibitionist bills.

uphill climb for reform this year
But while drug reform in the remainder of the 112th Congress may take on the aspect of slow-moving trench warfare, there is work to be done and progress to be made, advocates interviewed by Drug War Chronicle said. And intensely expressed congressional concern over federal budget deficits could provide opportunities to take aim at the federal drug war gravy train.

Bills to reform drug policy or of relevance to drug policy reform this session run the gamut from hemp legalization, medical marijuana reforms, and marijuana legalization to various sentencing reform and ex-offender re-entry measures, as well as a pair of bills aimed at protecting public housing residents from eviction because a family member commits a drug offense. Also worth mentioning is Sen. Jim Webb's (D-VA) National Criminal Justice Commission Act of 2011, which, if it were to pass, would be a feather in the soon-to-be-retiring senator's cap.

On the other side of the issue, the most intense prohibitionist fervor this session is centered around banning new synthetic drugs, with five bills introduced so far to criminalize the possession and trade in either synthetic cannabinoids ("fake weed"), or synthetic stimulants ("bath salts"), or both. Other regressive bills would ban anyone with a drug arrest from owning a gun and require states to drug test welfare recipients. A hearing on welfare drug testing is reportedly coming soon. Conservative Republican-controlled House foreign affairs and national security committees could also see efforts to boost drug war spending in Mexico or other hard-line measures in the name of fighting the cartels.

[To see all the drug policy-related bills introduced so far in Congress, as well as legislation introduced in the states, visit our new Legislative Center.]

While advocates are ready to do battle, the political reality of a deeply divided Congress in the run-up to a presidential election in the midst of deep economic problems means drug policy is not only low on the agenda, but also faces the same Republican House/Democratic Senate gridlock as any other legislation.

"The inertia is not exclusive to sentencing or drug policy reform," said Kara Gotsch of the Sentencing Project. "Nothing is moving. There is such a deadlock between the House and the Senate and the Republicans and the Democrats in both chambers. I don't think failure to move in this Congress is necessarily a sign of limited interest in reform, but the political fighting means nothing moves."

"The House is passing stuff with no expectation it will pass the Senate," said Eric Sterling, executive director of the Criminal Justice Policy Foundation. "The whole Congress right now is in a state of suspended animation, waiting to see whether Obama is reelected or not and whether the Senate goes Republican or not. The gridlock we all see in the headlines around big issues such as taxes and spending filters down to almost every committee and every issue."

And with Republicans in control of the House, the prospects for marijuana law reform in particular are grim in the short term, the former House Judiciary Committee counsel said. "I don't think there is going to be any positive legislative action," Sterling predicted. "The House is not going to take up the medical marijuana bills and it's not going to take up the Frank-Paul legalization bill. They won't even get hearings."

"I don't think any of these marijuana bills will pass with this Congress, but they're very important as placeholders," agreed Morgan Fox, communications director for the Marijuana Policy Project. "As long as those bills are out there, we can keep bringing the issue in front of lawmakers and continue to educate them about this."

Even stalled bills provide opportunities for advancement, Sterling concurred. "That's not to say there isn't important education that can be done, and organizing and encouraging members to cosponsor good legislation. They need to be educated. The test of whether the effort is worthwhile or not is whether it can be passed this session," he offered. "The political stars are not lined up.

Jim Webb at 2007 hearing on incarceration (photo from sentencingproject.org)
Medical marijuana legislation in Congress includes a pair of bills aimed at making the financial system friendlier to dispensaries and other medical marijuana-related businesses, as well as a bill that would reschedule marijuana for prescription use:

  • Introduced by Rep. Jared Polis (D-CO), H.R. 1984, the Small Business Banking Improvement Act of 2011, would protect financial institutions that accept medical marijuana deposits from federal fines or seizures and having to file "suspicious activity" reports. Such threats have prompted major banks to stop doing business with dispensaries.
  • Introduced by Rep. Pete Stark (D-CA), H.R. 1985, the Small Business Tax Equity Act of 2011, would allow dispensaries to deduct expenses like any other business and is designed to avoid unnecessary IRS audits of dispensaries and put an end to a wave of audits already underway.
  • The marijuana rescheduling bill, H.R. 1983, the States' Medical Marijuana Patient Protection Act, would also specifically exempt from federal prosecution people in compliance with state medical marijuana laws. It was introduced by Rep. Barney Frank (D-MA).

"We're having our grassroots support all three pieces of legislation, but our primary thrust is H.R. 1983," said Kris Hermes, spokesman for Americans for Safe Access. "It's tough to get people engaged at the federal level, but we've mounted a social media campaign and want to promote the bill through Facebook and other methods, getting some viral participation in something that should be important for most patients around the country."

Part of the group's difficulty in getting members to focus on Congress is because they are busy fending off assaults at the state and local level, said Hermes. "We've had many instances of state officials doing an about-face on implementation of state laws or further restricting them, so the battleground has become very focused and localized," he noted.

"That takes energy away from what's going on at the federal level, and that's the real tragedy because it's the federal government that's at the root of all the opposition and tension taking place at the local level," Hermes said, pointing to this year's spate of threatening letter from US Attorneys to elected officials. "Having to fight this locally takes energy away from what's going on at the federal level."

Aaron Smith of the National Cannabis Industry Association, the recently formed trade association for marijuana businesses, said his group was focused on the financial bills. "I'm not holding my breath on the Republicans in the House, but the very introduction of these bills is progress," he said. "For the first time, we're actually seeing some of the industry's issues addressed. We think we'll see more traction for these bills than the broader legalization issue. There's already an industry clamoring for regulation, and federal laws are getting in between states and businesses in those states. We will be seeing state officials supporting these reforms. It's hard to write a check to the IRS or state treasuries when you can't have a banking account."

While the association is not predicting passage of the bills this session, it will be working toward that goal, Smith said. "We can get more cosponsors and we will be working to raise awareness of the issue," he said. "Just a year ago, no one even knew about these problems, now they are being addressed, and that's progress in itself."

But Congress is not the only potential source of relief for the industry, Smith said. "It would be helpful if we could get a memo from the Department of the Treasury clarifying that businesses licensed under their respective state laws are not a banking risk," he continued, suggesting that the existence of the bills could help prod Treasury.

While acknowledging the obstacles to reform in the current Congress, Bill Piper, national affairs director for the Drug Policy Alliance, was more upbeat about the state of affairs on Capitol Hill. "I'm super-excited about the level of support for the Frank-Paul marijuana legalization bill," he said. "It has 15 cosponsors now, and when you consider that it is completely undoing federal marijuana prohibition, that's pretty remarkable. Three or four years ago, we couldn't even get anybody to introduce it. And I'm also pleasantly surprised by not only the number of cosponsors, but who they are. They include Reps. John Conyers (D-MI), Charlie Rangel (D-NY), and Barbara Lee (D-CA), three important members of the Congressional Black Caucus, and most recently, Rep. Raul Grijalva (D-AZ), a member of the Hispanic caucus."

In the event that the Democrats retake the House in 2013, Conyers would become chair of the House Judiciary Committee again, Piper noted. "We would have a cosponsor of a bill to end federal marijuana prohibition chairing that key committee," he said. Until then, Piper continued, "while the bill is gaining steam, it is unlikely to get a hearing in this Congress."

If the prospects are tough for marijuana reform in the current Congress, they aren't looking much better for sentencing reform, although the budget crisis could provide an opening, Piper said. "I'm not optimistic about sentencing reform, but DPA is advocating that it be added to the package of spending cuts and bills designed to reduce the deficit over the long term. If they're talking about reforming entitlements and the tax code, they should be talking about reducing unsustainable drug war spending," he argued.

The Sentencing Project's Gotsch said that while the Hill would be difficult terrain for the rest of the session, there is progress being made on the sentencing front. "The Sentencing Commission has been very good, and the Department of Justice has responded favorably to Fair Sentencing Act implementation. Justice supported retroactivity on crack, and it has also reversed course on prosecuting crack cases prior to August 2010," she said.

Even in the Congress, there are small signs of progress, she noted. "I am encouraged by things like federal good time expansion included in the Second Chance Act reauthorization. That has passed the Senate Judiciary Committee, and it even picked up one Republican vote. That's good, and that's a discussion we hadn't had before."

What Gotsch is not getting enough of is hearings, she said. "It's disappointing that there hasn't been more activity regarding hearings, but next month, the Sentencing Commission will hopefully release its mandatory minimum sentencing report, and I know the advocacy community will be pushing the Senate Judiciary Committee to hold hearings on that."

For Sterling, it is money that is going to move things in the current Congress. "According to the latest Sentencing Commission on federal drug cases, 26% of federal drug cases were marijuana cases," he noted. "With a federal drug supply reduction budget of $15.4 billion, you can argue to the Congress that if you were to pass the Frank-Paul legalization bill, you could save about $4 billion a year."

Sterling is making a similar argument to the deficit-tackling congressional Supercommittee about federal crack cocaine prosecutions. "I argue to them that if they eliminated federal crack cocaine prosecutions, which account for about 20% of federal drug cases, they could save $3.5 billion a year," he said. "Crack is made and sold locally; it shouldn't be a federal case. That should be reserved for people like Mexican cartel leaders."

But while Sterling's argument is logical, he is not sanguine about the prospects. "We could save billions of dollars a year, but I don't think something that gets translated as letting dope dealers out of prison is going to get very far. Still, it's a contemporary argument, and the money is real money. What is clear is that these expenditures are a waste; they're not keeping drugs out of the hands of the community or reducing the crime in the community, and the money could be better spent on something else."

Budget battles offer potential openings to drug reform foes as well. House Republicans are using budget bills to attempt to kill reforms they didn't like, such as opening up federal AIDS funding streams to needle exchange programs, said Hilary McQuie of the Harm Reduction Coalition.

"We have to fight this constantly in the House now," she said. "They're reinserting all these bans; they even put a syringe exchange ban rider in the foreign operations budget bill, so that's a new front, and we can't even fight it in the House. That means we have to make sure the Senate is lined up so these things can be fixed in conference committee. It feels to me like we can't make any progress in Congress right now."

McQuie said, though, that Congress isn't the only game in town. "We're looking less to Congress and more to the regulatory bodies," she said. "Obama's appointments have been pretty good, and just last week we had SAMHSA coming out with guidance to the state about applying for substance abuse block grants. This is the first big piece of money going out with explicit instructions for funding syringe exchange services. Even in this political atmosphere, there are places to fight the fight."

Where the Congress is likely to be proactive on drug policy, it's likely to be moving in the wrong direction. The ongoing panic over new synthetic drugs provides a fine opportunity for politicians to burnish their drug warrior credentials, and legislation to ban them is moving.

"I'm pessimistic about those stupid bills to outlaw Spice and bath salts," said Piper. "One bill to do that just sailed through the House Commerce Committee, and we're hoping it at least goes through Judiciary. The Republicans definitely want to move it, it went through Commerce without a hearing, and no one opposed it," he explained. "But we're working on it. Given that this is the 40th anniversary of the failed war on drugs, why add another drug to the prohibitionist model?"

"Those bills are going to pass," Sterling bluntly predicted. "There may be some quibbling over sentencing, but there's simply no organized constituency to fight it. DPA and the ACLU are concerned about civil liberties, but I don't think that's going to have much of an impact. I'd be very surprised if more than a handful of liberals vote against this."

That may not be such a bad thing, he suggested. "I'm quite willing to say that people who use these things should not be punished, but I'm not sure I want to defend the rights of people to sell unknown chemicals and call them whatever they want," he said.

Even though the evidence of harm from the new synthetics may be thin, it remains compelling, Sterling said, and few legislators are going to stand up in the face of the "urgent" problem. "Even if you argued that these drugs needed to be studied, the rejoinder is that we are facing a crisis. To challenge these bills is asking more courage of our legislators than our system tolerates."

The remainder of the current Congress is unlikely to see significant drug reform, in large part for reasons that have more to do with congressional and presidential politics than with drug policy. But that doesn't mean activists are going to roll over and play dead until 2013.

"People should continue to pressure members of Congress to get on the Frank-Paul legalization bill," urged Piper. "The more cosponsors we get, the more it helps with passing legislation at the state level, and it also helps with getting media on the issue and making it more likely that the bill will get a hearing. That's a top priority for us."

The budget issue also needs to stay highlighted, Piper said. "Whether it's Democrats or Republicans in charge, Congress is going to make cuts, and they should definitely be pressured to cut the drug war. We want the drug war on the chopping block. This is a unique historical opportunity with the recession and the focus on the budget cuts. We have to re-frame the drug war as not only failed, but too expensive to continue."

Washington, DC
United States

ALERT: Congress Must Pass Sentencing Reform

Twenty-five years ago Congress enacted severe mandatory minimum sentences, condemning thousands of mostly low-level, mostly nonviolent drug offenders to years, sometimes decades in prison. In part because of these and similar "sentencing guideline" penalties, the United States now suffers from an incarceration rate unprecedented in the history of our own country or any other.

Last year Congress took a modest step in the right direction, unanimously passing the Fair Sentencing Act -- raising the quantities of crack cocaine needed to trigger certain infamous five- and ten-year sentences, and eliminating mandatory minimums for crack possession. But much, much more is needed to address these unjust and exorbitantly expensive sentencing laws.

Please write Congress today to call for passage of the following important bills:

  • H.R. 2303, the "Major Drug Trafficking Prosecution Act," sponsored by Rep. Maxine Waters (D-CA) -- eliminates mandatory minimums to reduce the incentive prosecutors have to go after large numbers of low-level offenders.
  • H.R. 2316 and H.R. 2242, sponsored by Rep. Bobby Scott (D-VA), bills to make last year's crack sentencing reforms retroactive; and to continue the reform by eliminating "cocaine base" from the federal code entirely, thereby reducing penalties further to reach the same level as powder cocaine offenses.

When you are done, please make a call, send a letter or pay a visit to your US Representative and your two US Senators to urge them to pass sentencing reform -- you can reach them via the Congressional Switchboard at (202) 224-3121, or look them up on our web site. Please use our tell-a-friend form to spread the word about this important legislation too.

Every day that passes without sentencing reform is a day that thousands of people who don't need to be in prison, who may have never deserved to go there, continue to languish needlessly behind bars, separated from their friends and families who want them back. Thank you for taking action.


Ongoing reporting on drug sentencing is available on our web site
here, or by RSS feed here.

Massachusetts Joint Committee on the Judiciary Hearing

Visit http://www.malegislature.gov/Events/EventDetail?eventId=228&eventDataSource=Hearings or http://famm.org/StateSentencing/Massachusetts/MassachusettsUpdates/September20JudiciaryCommitteeHearing.aspx for further information on this hearing.

Visit http://www.capwiz.com/drcnet/issues/bills/?type=ST#Current_Sessions:_Sentencing_&_Incarceration for information on some of the sentencing bills being considered in Massachusetts and other states.

Date: 
Tue, 09/20/2011 - 1:00pm - 5:00pm
Location: 
24 Beacon St., Room B-2
Boston, MA 02108
United States

Federal Crack Prisoners Will Get Sentence Cuts [FEATURE]

Thousands of inmates imprisoned on federal crack cocaine charges will be able to seek sentence reductions and early release after the US Sentencing Commission vote unanimously June 30 to make changes in federal sentencing guidelines for crack offenders it had approved earlier this year retroactive. About 85% of those crack prisoners are black.

Federal Correctional Institution Milan, Milan, Michigan. Soon there will be room at the inn. (Image: Wikimedia.org)
The changes in the sentencing guidelines came after Congress last year passed the Fair Sentencing Act reducing the notorious disparity between crack and powder cocaine offenses. Under drug laws passed amidst the crack hysteria of the mid-1980s, people caught with as little as five grams of crack faced a mandatory minimum five-year prison sentence, while people caught with powder cocaine had to be carrying 100 times as much of the drug to garner the same sentence.

The law passed last year reduced the sentencing disparity from 100:1 to 18:1, but did not eliminate it. After passage of the law, the Sentencing Commission proposed a permanent amendment to the federal sentencing guidelines to implement the new law, which would result in sentence reductions for newly convicted crack offenders. But that amendment provided no relief for those already serving harsh crack sentences -- until now.

With the Sentencing Commission's vote Thursday, retroactivity for current crack prisoners will go into effect the same date as the proposed amendment, November 1, unless Congress acts to undo it. But despite the grumblings of a few Republicans, that appears unlikely.

"In passing the Fair Sentencing Act, Congress recognized the fundamental unfairness of federal cocaine sentencing policy and ameliorated it through bipartisan legislation," noted Commission chair, Judge Patti Saris. "Today's action by the Commission ensures that the longstanding injustice recognized by Congress is remedied, and that federal crack cocaine offenders who meet certain criteria established by the Commission and considered by the courts may have their sentences reduced to a level consistent with the Fair Sentencing Act of 2010."

While not every crack offender in the federal prison system will be eligible to seek a lower sentence, more than 12,000 will, and they will see an average sentence reduction of slightly more than three years. That should result in a cost savings of more than $200 million over the next five years, the Commission said.

But with an average crack sentence of about 13 ½ years, current crack prisoners will still serve a harsh average of about 10 ½ years. [Editor's Note: The original version of this article inadvertently understated those numbers.] And many future crack offenders will still be handed down mandatory minimum five- or 10-year sentences based on the amount of crack involved in their offenses.

While advocates lauded the commission's move, they noted that there was still more work to be done. Still, for many, some of whom have been working to redress the injustice for years, Thursday was a day of joy and relief.

"I am thrilled for our members and their families who suffered under a sentencing scheme that Congress admitted was fundamentally flawed, said Julie Stewart founder and director of Families against Mandatory Minimums. "I am also grateful to the members of the Sentencing Commission who responded to facts, not fear. The Commission once again has played its rightful role as the agency responsible for developing sound, evidence-based sentencing recommendations. In fact, if Congress had listened to the Commission fifteen long years ago when it first called for crack sentencing reform, today’s vote might not have been necessary," said Ms. Stewart.

But noting that Thursday's vote only applied retroactivity to relaxed sentencing guidelines and not to pre-Fair Sentencing Act mandatory minimums, Stewart called on Congress to make the act retroactive as well, bringing relief to those serving mandatory minimum sentences.

"The ball is now in Congress's court," Stewart said. "To finish the job, Congress must now make the mandatory minimum sentence for crack cocaine retroactive."

While calling the commission's action "the right thing," ACLU Washington Legislative Office director Laura Murphy also said further reform was needed. "Making these new guidelines retroactive will offer relief to thousands of people s who received unfair sentences under the old crack cocaine law. However, despite today's victory, sizeable racial and sentencing disparities still exist, and it is time for our country to seriously rethink mandatory minimums and a one-size-fits-all approach to sentencing. Based on little more than politics and urban myth, the sentencing gap between powder and crack cocaine has been devastating to our African-American communities."

The change has been a long time coming, said the Drug Policy Alliance (DPA). "Since 1995, the US Sentencing Commission has, in four reports to Congress, requested that Congress raise the threshold quantities of crack that trigger mandatory minimums in order to ease the unconscionable racial disparities in sentencing," said Jasmine L. Tyler, DPA deputy director of national affairs. "This vote to provide retroactive relief to the thousands of defendants whose sentences the Commission has consistently condemned for the past seventeen years."

"The difference between crack and powder cocaine is cultural, not chemical," said Jim Lavine, president of the National Association of Criminal Defense Lawyers. "The Commission's own research indicates that over 80 percent of the nonviolent offenders who will benefit from the new guideline are African-American or Hispanic. We can't give back all the time that offenders served under the previous guidelines, but reducing prison time for those persons still incarcerated is a significant recognition of the unfairness of the old law," he said. "A civilized society doesn’t mete out punishment based on a defendant's culture or skin color."

Some Republican lawmakers had opposed retroactivity, arguing that early releases would pose a threat to the public safety, but the Sentencing Commission reported that prisoners released early had no higher rate of recidivism than those who served more time. It also sought to reassure nervous conservatives that each case would be carefully reviewed.

"The Commission is aware of concern that today’s actions may negatively impact public safety," said Judge Saris. "However, every potential offender must have his or her case considered by a federal district court judge in accordance with the Commission’s policy statement, and with careful thought given to the offender's potential risk to public safety. The average sentence for a federal crack cocaine offender will remain significant at about 127 months," she explained.

The Sentencing Commission's vote is a significant victory against prejudice and injustice and marks another milestone in the retreat from the "lock 'em up" mania that has dominated the officials response to illicit drug use and sales for decades. But the fact that the federal courts are still going to be sending people to prison for a decade for slinging some rocks, or even, in some cases, merely possessing them, shows how far we still have to go.

Washington, DC
United States

Drug War Issues

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